New Delhi
A Twitter user Nikhil Jois received a mail from Twitter notifying that his account information is being submitted to the court for legal process because of his tweet from June 2015 : “Also… did you try burning Kurkure? It has pla” from his handle @nikhiljoisr.
Like Jois, hundreds of social media users in India are being notified that their account details is being submitted to the Delhi High Court over an ongoing civil suit in which PepsiCo is suing platforms like Facebook, Twitter, Youtube and Instagram.
On June 1, PepsiCo India sued multiple American technology platforms claiming Rs 2.1 crore in damages for permitting the circulation of ‘defamatory and disparaging’ content against its Kurkure brand.
PepsiCo in its suit claimed that videos/posts on social media made false claims that the snack contained inflammable plastic and was unsafe for human consumption.
“From what I understand, Pepsi has an issue with people talking about something that they have attempted to disprove multiple times,” said Jois, one of the users who was notified of the submission of account details to the court.
“My tweet didn’t even say plastic, it just says ‘pla’. Many of us joke about kurkure and plastic. To me it looks like a frivolous attempt at bringing up something the from the past.” Jois is currently not seeking any legal help in this matter.
The consumer brand submitted that despite having prior knowledge of the false contents, the social media companies’ refusal to take down the video/post without a court order caused negative engagement on social media, resulting in loss of reputation and goodwill.
On Monday, the court directed the social media platforms to submit the account details of individuals who had posted/shared disparaging content about Kurkure in a “sealed envelope” to the court. Though it is not clear what ‘account details’ will be shared, it could encompass the archive of posts, handle, phone number, age, email address and the like of the user.
The defendants have four weeks to remove all flagged content and provide the account details. The next hearing is on November 14, 2018.
YouTube has said that it has disabled all the identified URLs, while Facebook and Twitter have not confirmed the content has been taken down.
PepsiCo submitted a detailed list of all the links hosting the impugned content to the court. On Facebook alone, it submitted 3,412 links and 20,244 posts, while Twitter, Youtube and Instagram had 562, 242 and 6 links respectively.
Another Twitter user Srishti, received a similar email from Twitter about a tweet from 2015 when she had joked about Kurkure being used for plastic surgery. “It was a harmless joke,” Srishti said.
Upon hearing the matter on June 1, the Delhi High Court ordered the companies to block URLs, weblinks, comments and other contents that were disparaging to Kurkure. PepsiCo said that by not removing the video/posts the social media platforms were complicit in the loss of reputation and goodwill, indirectly amounting to encouraging the offender to post such defamatory content on their websites.
However, Section 79 of the IT Act is the safe harbour for intermediaries like Facebook and others that do not make platforms liable for any third-party information, data, or communication links made available.
“Facebook and others have followed the law by asking for a court notice to take down content,” said Anirudh Rastogi, lawyer at TRA law, a technology law firm. But, under the exception of Section 79, “PepsiCo might argue that since (the defendants) had taken down similar content back in 2013, and that there were several complaints made later on, why did they (social media platforms) refuse to take down similar content asking for a court order.
“In asking for the court order, Facebook is relying on Shreya Singhal judgement in 2015 relating to restriction on online speech. which revokes the power of the intermediality to block or decide what is right and wrong.”
Facebook and YouTube responded that they had abided by the law in seeking the court order. A YouTube spokesperson said: “As per the Supreme Court’s order passed in Shreya Singhal case for an intermediary the “actual knowledge” under Section 79(3) of the IT Act is only attributable through a court order and/or a notification by the appropriate Government or its agency and does not refer to knowledge acquired by way of a complaint by the third parties.”
“The immediate cause of action for filing the present suit arouse in the month of May 2018 when the Defendants refused to remove/block the video despite plaintiff’s (PersiCo) complaints,” PepsiCo said in its suit.
The issue first arose in October 2013, when PepsiCo came to know about videos in which Kurkure was being burnt along with claims that it contained plastic. When this was reported by Pepsico, on October 10, 2013 Facebook removed the content.
In the period between 2013 and 2017, Pepsico ran multiple campaigns to correct the claims. Recently, in 2018, when Pepsico again asked companies to take down the “disparaging” content, the defendants asked PepsiCo to obtain a court order to do so.
