Madras High Court: B. Pugalendhi, J. cancelled the bail of a Youtuber who made derogatory remarks as against the former Chief Minister of the State of Tamil Nadu.
The facts of the case are such that Respondent 1 (R 1) is a YouTuber and he has made certain derogatory remarks as against the former Chief Minister of the State of Tamil Nadu. On the complaint lodged, a case was registered for the offence under Sections 153(A), 504 & 505 (i) (b) Penal Code, 1860 i.e., IPC r/w Section 67 of the Information Technology (Amendment) Act, 2008 i.e., IT Act and he was also apprehended. R 1 filed an affidavit of undertaking stating that he has realized his mistake and that he will not indulge in any such activities in future and sought bail which was granted. Hence, an application was preferred for cancellation of bail by the State.
Counsel for respondent- accused submitted that not only the first respondent, but also several lakhs of people are promoting such kinds of activities and are getting substantial income from YouTube, depending upon the number of views but are not reported. YouTube is, in fact, encouraging these types of defamatory videos and depending upon the views, both YouTube as well as the channel holders are making money out of it.
Counsel for State submitted that as per Section 69A of IT Act, whenever a request for blocking the content is made by the Central Government or by its Authorized Officer, it is the duty of the intermediary to block the content for public access failing which it will punishable with an imprisonment for a term which may extend to seven years and shall also be liable to fine. If the intermediaries acted as per Section 69A of the IT Act, then they are excepted from liability as per Section 79(3)(b) of IT Act.
The court appointed Amicus Curiae submitted that the main lacuna in the Act is that there is no provision for license for the intermediaries. Intermediaries operating from abroad are also bound by the law of land.
The investigation agency submitted that in most of the cases the affected persons are not coming forward to lodge a complaint. On the other hand, whenever a request is made, the intermediaries insist on the FIR or the Court order.
It was also brought to the notice of the Court that there is a contract between the intermediaries and the channels. In case of any violation of the conditions, it is the duty of the intermediaries to remove or block the channel as per the terms of their agreement and to ascertain whether those videos are in accordance with their policies and guidelines and accordingly block the channels. If it is not blocked or removed even after it was brought to their expected knowledge, the intermediaries are committing the offence under Section 69A (3) of the Information Technology Act.
The Court observed that the contents of the first appellant’s video violate the terms and conditions of the intermediary and as such, the investigating agency ought to have brought the same to the knowledge of the intermediary. If the intermediary, even after bringing such violation to their knowledge, failed to remove the videos, then the investigating agency shall book them as well.
The Court noted that from the records, it appears that the first respondent is in the habit of committing the offences with an intention to have more views so as to earn money from social media. Within a few days after submitting an undertaking affidavit before this Court, based on which he was enlarged on bail, he has indulged in further offence by making derogatory remarks as against the Hon’ble Chief Minister of the State.
The Court thus held “This Court is satisfied that it is a clear violation of the terms and conditions stipulated in the earlier orders and as such, this Court is inclined to cancel the earlier bail granted to the first respondent” [State v. A Duraimurugan Pandiyan Sattai, 2022 SCC OnLine Mad 2846, decided on 07-06-2022]
For Petitioner and R 2: Mr. T. Senthil Kumar
For R.1: Mr N. Mohideen Basha
Amicus Curiae: Mr. K. K. Ramakrishnan