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Re-enactment of Yahoo-Memorabilia case in India?
Google's community Orkut which is already accused of hosting pornographic information is now accused of hosting anti-India hate communities. A PIL has been filed by an advocate Yugant R Marlapalle in Aurangabad and an order was issued by Justice A P Deshpande and Justice R M Borde in this regard on 9th October 2006 directing the Maharashtra government to issue notice to Google for alleged spread of hatred about India by its social network service `Orkut'. It was alleged that a picture of burning national tri-colour, bearing anti-india message, has been put on www.Orkut.Com and a community "We Hate India" has been created on the site, according to the petition. The petition has also appealed to the government to appoint a 'controller' under the Information Technology Act-2000 to regulate all such communities being in operation on the internet.
It may be remembered that some time back, French Government fought with Yahoo in the well known Nazi Memorabilia case which became a landmark case in Cyber Jurisdiction. Is Orkut Case similar?..Or More?
It is necessary to recall the developments in the Yahoo case so that we can look at the Orkut-India case in this light and hence a brief summary of the Yahoo case is provided below.
Initially, at the French Court, Yahoo lost the case. The Court ruled that Yahoo must put a three-part system in place that includes filtering by IP address, the blocking of ten keywords, and self-identification of geographic location. The system follows the recommendations of an expert panel appointed by the court to investigate such technologies, which revealed its findings earlier this month. Yahoo will have three months to put the system in place, after which time the company would be subject to a fine of 100,000 francs ($13,000) a day if the system has not been implemented.
Following the Court order, Yahoo announced that it would stop offering abusive material and Nazi memorabilia for auction on its site from 10 January 2001.
However, Yahoo later sued LICRA and UEJF (The League against Racism and Anti-Semitism and Jewish Students Union of France) in U.S. District Court for the Northern District of California in San Jose to have the French court's verdict declared unenforceable in the United States, arguing that it violates the right to free speech. The district court sided with Yahoo. the French parties, however, filed an appeal with the Ninth U.S. Circuit Court of Appeals in San Francisco, which they won .
The French groups appealed against this order at the Ninth U.S. Circuit Court of Appeals. In the judgment delivered on 26th August 2004, Yahoo lost. A Six bench Ninth U.S. Circuit Court of Appeals in San Francisco, rejected Yahoo's arguments, for two different reasons. Three judges ruled that California courts have no jurisdiction over the French organizations. Another three judges stated that the case isn't "ripe," meaning Yahoo hasn't suffered sufficient hardship stemming from the French court's decision.
Yahoo then asked the appeals court to again hear the case with 11 judges. That appeal was argued in March 2005, and the court's decision was handed down on 12th January 2006. The Court dismissed Yahoo's contention.
In May 2006, the French groups which were the initiators of this litigation approached the US Supreme Court stating the possibility of Yahoo bringing up a fresh suit on them. However Supreme Court declined to hear the case at this stage. This does not alter the effect of the earlier rulings.
These developments, therefore upheld the right of French Government to ensure blockage of the objectionable content from the website.
Now if we look at the Orkut case, we have a similar situation that the Indian Government or one of its Courts holds Orkut guilty of an anti national activity and is therefore well within its rights to force Orkut to close down the offending material. The Court can even be requested to order payment of penalty of Orkut refuses to oblige as was done in the Yahoo case by the French court. If such a pressure is not brought upon Orkut, it is unlikely to follow the order and the matter will end up with litigation that will drag on.
Additionally, under the Information technology Act 2000 (ITA-2000) Orkut will lose the Section 79 protection as soon as the notice is served on them of an offence under ITA-2000 and will be guilty under appropriate sections of IPC under which the offence is recognized. There are already other complaints about obscene content on Orkut and these will be liable under Section 67 of ITA-2000. However the offence under which Indian flag is shown burning and statements in favour of sedition etc may have to be brought under IPC.
Additionally case could be brought on the ISP hosting Orkut site who may have to close the website of Orkut for violation of terms under the hosting agreement.
The case is therefore interesting academically and needs to be pursued.
Naavi
October 10, 2006
Related Articles:
Orkut accused of carrying anti-india messages, could be trouble : Deccan Herald
French Court Ruling in November 2000...PC World
Yahoo Loses Appeal in US in January 2001
Supreme Court Passes on Yahoo Nazi Memorabilia Case.. May 30, 2006...PC World
