Modern Australian
The Times

India’s social media content removal order is a nail in the coffin of the internet as we know it

  • Written by Dan Jerker B. Svantesson, Professor, Bond University
India’s social media content removal order is a nail in the coffin of the internet as we know it

In recent weeks, India’s High Court of Delhi put another nail in the coffin of the internet as we currently know it. The court granted an order requiring Facebook, Twitter and Google to remove certain content globally, based on that content being defamatory under local law in India.

This decision underlines a worrying trend of a “race to the bottom” for internet freedom, where the scope of jurisdiction claimed by the courts is global.

If widely adopted, this may result in a situation where the only content that remains online is that which complies with all the laws of every country in the world.

Another brick in the wall

In reaching its decision, the Indian court relied on a string of recent decisions from around the world. For example, it drew from the Canadian approach in Equustek, where the Supreme Court of Canada ordered Google to remove content globally.

It also referred to a 2017 Australian case in which the Supreme Court of New South Wales ruled Twitter must globally block any future posting by a specific user.

Read more: Facebook goes full circle on censorship, like it or not

The most recent decision referred to was a ruling by the Court of Justice of the European Union (CJEU) in which the CJEU concluded the EU’s e-commerce directive doesn’t prevent courts in EU countries from ordering social media sites to block or remove information worldwide.

Following the CJEU’s decision, several leading commentators argued that, while much has been made of the CJEU’s apparent green light to global takedown orders, in reality this was just a decision about the dividing line between EU law and national law.

Even if this is true, headlines around the world didn’t communicate such a nuanced outcome. And with the current decision from India, we can see with complete clarity how that case is now being used by foreign courts. This shows how careful courts must be as to the messaging of their judgements.

It’s of course possible to suggest this type of application of an EU law case is a mistake by the Indian court, rather than the CJEU - and there is certainly merit in such an argument. However, the CJEU’s decision was a missed opportunity to clearly communicate a general stance against global orders as being standard.

A missed opportunity to explain geo-location technologies

Geo-location technology may be used to block online content within a specified geographical area. This practice caters to a global internet while still respecting differences in laws, and in India’s case could provide an alternative to a global blocking order.

Read more: Governments are making fake news a crime – but it could stifle free speech

However, more than once, courts have failed to understand how this technology operates. And at least on this occasion, errors could have been avoided since the court “had specifically directed the defendants to throw some light on how geo-blocking is done and to keep a technical person present in court to seek clarification on geo-blocking”.

The court said none of the internet platforms had given a detailed explanation as to how geo-blocking is done.

As a result, the court clearly misunderstood the impact of geo-blocking:

If geo-blocking alone is permitted in respect of the entire content, […] the offending information would still […] be accessible from India, […] by accessing the international websites of these platforms.

Where geo-blocking is done by reference to domain names, internet users can indeed use another country’s version of the site in question and access the content. This seems to be the situation the court had in mind.

In contrast, with blocking by geo-location technology, the content is tailored to the user’s location, regardless of which country’s version of the site is accessed. It’s highly unfortunate the court wasn’t made to understand this important distinction.

Silver linings, and the way onward

Although the above probably makes clear that I see the Indian court’s decision as a setback, there are also some positive aspects that ought to be highlighted.

In its decision, the court clearly acknowledged the importance of the scope of jurisdiction issue and the implications of global orders.

The court also devoted considerable effort to discussing case law from around the world. This is an important step if we are to see a global harmonisation in approach. That said, I’d like to add that currently harmonisation seems to be taking us in an undesirable direction, with global blocking/removal orders as standard.

Given the court had taken account of the international environment, it’s disappointing, not to say odd, that it didn’t properly engage with the international law issues raised by the defendants. For instance, defendants mentioned the doctrine of comity, which demands courts take the international impact of their decisions into consideration.

Read more: Caution over the EU's call for global forgetfulness from Google

While the Indian court decision is currently under appeal, there’s no point denying the future of the internet looks bleak when it comes to scope of jurisdiction.

The case discussed here sets an important precedent, not just for India but also the rest of the world. And much is at stake.

Authors: Dan Jerker B. Svantesson, Professor, Bond University

Read more http://theconversation.com/indias-social-media-content-removal-order-is-a-nail-in-the-coffin-of-the-internet-as-we-know-it-126273

How Long Do Bathroom Renovations Melbourne Take? Step-by-Step Process Explained

Planning a bathroom renovation is exciting, but one of the biggest questions homeowners ask is, "How long will it take?" While every project is uniq...

Why Your Skin Breaks Out: The Science of Acne Explained

Acne is the most common skin condition in the world. An estimated 85% of people experience it at some point between the ages of 12 and 24, and a gro...

10 Swimwear Trends Australian Women Are Wearing This Summer

Every Australian summer brings a fresh wave of swimwear trends, but some styles have much greater staying power than others. While fashion constantly ...

Why Regular Skills Updates Are Essential for Licensed Security Officers

A guard at a Brisbane shopping centre gets a call about a shoplifter who's turned aggressive.  They’ve done the job for six years. But their de-...

10 Benefits of Choosing Professional Tutoring Penrith Services

Every student has unique learning strengths, challenges, and academic goals. While classroom teaching provides essential knowledge and structure, so...

Sunshine Coast Baby Classes Prove Big Hit Among First-Time Mums

There's a movement gaining traction on the Sunshine Coast, providing a village of support, socialisation and relief for first-time mothers and babie...

Father's Day Gift Ideas for Men Who Are Hard to Buy For

Some dads are easy to buy for. Others do not want anything, already have everything, or give you the classic "don't worry about me" answer every yea...

Top 5 Mistakes That Wear Out Your Brakes Faster

Brakes don't need frequent replacements like oil changes do.   But a lot of the wear happens quietly, over months, because of habits most drivers...

Plantation Shutters vs Curtains: Which Is Better for Your New Home?

Moving into a new home is an exciting opportunity to personalise your space and make it your own. While many homeowners focus on furniture, flooring...

Celebration of Life vs Traditional Funeral: What's the Difference?

When saying goodbye to someone you love, there is no single way to honour their life. Every family has different traditions, beliefs, and preference...

Building Approval for Roofing Projects: What Homeowners Need to Know

Roofing projects are an important part of maintaining and protecting your home. Whether you're repairing storm damage, replacing an ageing roof, or ...

Chatswood Tutoring And Its Role In Academic Achievement

Academic success often requires more than classroom attendance alone. Students face increasing expectations as they progress through school, particu...

Why Laser Hair Removal Treatments Continue Growing In Popularity

Managing unwanted hair can become time-consuming and frustrating for many people, especially when shaving, waxing, and other temporary methods requi...

Choosing the Right Devices for a Flexible Workplace

For IT leaders managing large fleets, the device layer is where workforce productivity and security policy meet. The shift towards flexible and hybrid...

How Business Advisory Services Help Companies Achieve Sustainable Growth

Every business owner aims to build a profitable and sustainable organisation. While dedication, innovation, and hard work are important, achieving l...

Why Body Contouring Has Become A Popular Cosmetic Treatment

Many people maintain healthy lifestyles through regular exercise and balanced eating habits but still struggle with stubborn areas of fat that are d...

How to Choose the Right POS Hardware for Your Business in Australia

A lot of Australian business owners spend weeks researching POS software but buy hardware almost as an afterthought. That's a mistake. The wrong har...

Why Material Handling Hose Is Critical for Industrial Efficiency

A high-performance material handling hose is an essential component in industries that transport abrasive, dry, or bulk materials on a daily basis...