While rejecting wide prayers to suspend accounts or block future uploads as impermissible ‘super-censor’ relief, the Bombay High Court has held that identifiable directions can issue against intermediaries under Section 79 IT Act framework. The Court directed X Corp to take down, remove, or delete the fresh video uploaded by defendant Yohan Tengra on the night of 5 June 2023, in which he brazenly defied the injunction and continued calling Adar Poonawalla ‘a mass murderer’.
A show-cause notice was issued to defendants 1 to 4 as to why action under Order XXXIX Rule 2A of the CPC should not be initiated for wilful disobedience of the 5 June 2023 injunction, returnable on 27 October 2026. The Court also reaffirmed that, under Section 79(3)(b) of the IT Act read with Rule 3(1)(d) of the Intermediary Rules, 2021, ‘actual knowledge’ triggering the three-hour takedown obligation must flow from a court order of competent jurisdiction or a reasoned order of the appropriate government.
A Single Judge Bench of Justice Gauri Godse observed that the order dated 5 June 2023 had not been challenged by defendant 1 by way of appeal, nor had it been recalled or set aside, and therefore the injunction granted therein continued to subsist and remained enforceable. The Court noted that the principles of res judicata under Section 11 of the CPC would not apply to the present application, as the earlier order was an interim direction and the present cause of action had arisen from subsequent events, namely the fresh video uploaded by defendant 1 in defiance of the Court order.
The Court further observed that, under the legal framework governing intermediaries, ‘actual knowledge’ within the meaning of Section 79(3)(b) of the Information Technology Act, 2000 read with Rule 3(1)(d) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, must flow from a court order of competent jurisdiction or a reasoned order of the appropriate government, and that the obligation to act within three hours arises only upon receipt of such an order.
The Court also deprecated the conduct of defendant 1 and his advocates in repeatedly making baseless and derogatory allegations against the Single Judge who had passed the 5 June 2023 order, observing that such conduct scandalises the court and could not be ignored.
Briefly, Serum Institute of India Pvt Ltd. and its Chief Executive Officer, Mr. Adar Poonawalla, filed a commercial suit before the Bombay High Court seeking a mandatory injunction against several defendants, including social media influencer Yohan Tegra (who operates the YouTube channel ‘Anarchy for Freedom India’ and a Twitter handle), the entity ‘Anarchy for Freedom India’, Mr. Ambar Koiri, TV10-L.I.V.E., a John Doe/Ashok Kumar, Google LLC, and X Corp.
The plaintiffs alleged that the defendants had uploaded and circulated defamatory videos and content targeting the company and its CEO, and sought removal of such material along with damages of Rs. 100 Crores. By an order dated 5 June 2023, the Court granted interim relief, restraining defendants 1 to 5 from publishing or circulating the defamatory content and directing them to remove the offending material and tender an unconditional apology.
According to the plaintiffs, defendant 1 brazenly defied the order by uploading a fresh video on the very same night, declaring that he would not comply and would continue calling Mr. Poonawalla ‘a mass murderer’. A take-down notice was thereafter issued on 9 June 2023 to Google LLC and X Corp. Google complied and removed the content, but X Corp refused, taking the stand that the 5 June 2023 order was not specifically directed at it. The plaintiffs were accordingly constrained to file the present Interim Application seeking mandatory directions against X Corp to remove the objectionable content, ensure no further defamatory material is uploaded, and suspend or delete the accounts of defendants 1 to 4.
