Intermediary Not Obligated To Remove Allegedly Defamatory Content Without Court Order Or Government Notification: Kerala High Court

The Court further held that the expression “actual knowledge” occurring under Section 79(3)(b) of the Information Technology Act, 2000, has to be understood in the manner explained by the Supreme Court in Shreya Singhal v. Union of India (2015), namely that such actual knowledge arises only upon receipt of a court order directing removal or disabling of access to specified material.

The Court was hearing a writ petition filed by managerial employees of a broadcasting company alleging that certain publications made by respondents operating the online news platform “Marunadan Malayali” through social media platforms, including YouTube, were defamatory in nature and violated their rights under Article 21 of the Constitution.

The petitioners sought directions against Google entities, Union authorities and the publishers for removal of the allegedly defamatory content and for enforcement of obligations under the Information Technology Act, 2000 and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

A Bench of Justice Ziyad Rahman A.A., while referring to Section 79 of the IT Act, 2000, observed: “… the said provision contemplates an obligation upon the intermediary to remove the content on happening of two events; firstly, upon receiving actual knowledge, and secondly, on being notified by the appropriate government or its agency, as to the unlawful nature of the content.”

“As far as the 'actual knowledge' referred to in such provision, it is to be noted that, Shreya Singhal's case (supra), the Hon'ble Supreme Court read down the said provision to mean that, the intermediary, upon receiving the actual knowledge that, a Court order has been passed asking it to expeditiously remove or disable access to certain material, must then fail to expeditiously remove or disable access to that material”, the Bench added.

The Bench accordingly held: “Thus, the event of the actual knowledge referred to above, in the said provision, is deemed to have occurred only when an order has been passed by a competent Court in respect to the same and not otherwise. Therefore, so long as there is no order passed by a competent Court, or notified by the appropriate government or its agency, there is no obligation upon the intermediary to block the content”.

Senior Advocate A. Kumar appeared for the petitioners. Deputy Solicitor General O.M. Shalina appeared for the respondents.

Background

The petitioners approached the High Court alleging that the respondents operating the online channel “Marunadan Malayali” were repeatedly publishing false and defamatory news items concerning them through YouTube and other online platforms.

The petitioners issued legal notices to Google entities seeking the removal of the allegedly defamatory videos and payment of compensation. In response, Google informed the petitioners that it was not in a position to adjudicate the veracity of postings and that removal would be considered upon receipt of orders passed by a competent court.

The Google entities contended before the Court that YouTube functioned merely as an intermediary under Section 2(w) of the Information Technology Act, 2000 and that the impugned contents were third-party uploads created and published by the sixth and seventh respondents. It was argued that intermediaries are not “originators” of content and cannot independently determine whether content is defamatory.

The petitioners, however, contended that respondents had failed to comply with obligations under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and that the continued hosting of defamatory material violated their rights under Article 21 of the Constitution.

Court’s Observation

The Court examined the statutory framework under the Information Technology Act, 2000, including the definitions of “intermediary” under Section 2(w) and “originator” under Section 2(za).

The Court observed that YouTube and the Google entities merely provided the platform through which users uploaded content and had no role in the creation or generation of the impugned publications.

The Court therefore held that the role played by Google was that of an intermediary entitled to protection under Section 79 of the Information Technology Act, subject to fulfilment of statutory obligations.

The Court analysed Section 79(3)(b) of the Information Technology Act, which withdraws immunity from intermediaries where they fail to remove unlawful content upon receiving “actual knowledge” or upon notification by the Government or its agency.

Referring to the Supreme Court judgment in Shreya Singhal v. Union of India (2015) 5 SCC 1, the Court observed that the expression “actual knowledge” had already been read down by the Supreme Court to mean knowledge arising through a court order directing the removal of specified material.

The Court therefore held that in the absence of a court order or notification by the Government or its agency, no legal obligation arises upon the intermediary to remove allegedly defamatory content.

The Court also examined Rule 3 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, dealing with due diligence obligations of intermediaries.

The Court specifically noted that while the original version of Rule 3(1)(b)(ii) contained the expression “defamatory”, the same had subsequently been removed through amendment notified vide G.S.R. 794(E) dated 28.10.2022.

The Court observed: “Thus, the legislature consciously removed ‘defamation’, from among the matters pertaining to which due diligence is to be observed by the intermediary.”

The Court further observed that the adjudication of defamation involves examination of several factual and legal aspects and therefore cannot be undertaken by intermediaries functioning as private entities.

The Court emphasised that the determination of whether a publication is defamatory requires adjudication by a competent court or authority and not by intermediaries.

The Court observed: “Since the intermediary being a private entity, it cannot adjudicate the question as to whether the contents published by a user of its platform are defamatory in nature or not.”

The Court held that the intermediary’s duty is confined to complying with Section 79 and acting upon court orders or Government notifications regarding unlawful content.

The Court further observed that the petitioners had not obtained any adjudication from a competent court declaring the impugned publications defamatory.

The Court held that the determination of whether particular content is defamatory involves disputed questions of fact which cannot ordinarily be adjudicated in proceedings under Article 226 of the Constitution.

The Court also relied upon the earlier Kerala High Court decision in Aneesh K Thankachan v. Union of India (2024), wherein it had similarly been held that intermediaries cannot be directed to remove allegedly defamatory content in the absence of a judicial determination regarding the defamatory nature of the material.

Conclusion

Holding that the petitioners had not obtained any adjudication declaring the impugned publications defamatory and that such disputed questions could not be decided in writ proceedings under Article 226, the Court declined to grant the reliefs sought in the writ petition.

Cause Title: Anto Augustine & Ors. v. Union of India & Ors. (Neutral Citation: 2026:KER:33754)

Appearances

Petitioners: Senior Advocate A. Kumar with Advocates Muhammed Firdouz A.V., Libin Varghese, A.H. Sincey, Akhil Philip Manithottyiyil and M.P. Shameem Ahamed.

Respondents: O.M. Shalina, Deputy Solicitor General of India; Senior Advocate Santhosh Mathew; Advocates Riji Rajendran, Sreekumar G. (Chelur), Arun V.Gg, Mitha Sudhindran, Souradh C. Valson, Thejus Thomas Kattady, Anushree, R.S. Diwaagar, Bharadwajaramasubramaniam R., K.R. Syam Sekhar and Neeraj Narayan.

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