Full Judgment Text
.* HIGH COURT OF DELHI : NEW DELHI
+ CS (OS) No.871/2012
% Order decided on : 30.03.2012
NIRMALJIT SINGH NARULA ..... Plaintiff
Through Ms. Karnika Seth, Adv. with
Mr. Amit Seth & Mr. Lakshay
Sawhney, Advs.
versus
INDIJOBS AT HUBPAGES.COM & ORS ..... Defendants
Through None
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.(Oral)
I.A. No.6040/2012 (u/S 151 CPC for exemption)
This application has been filed by the plaintiff under Section
151 of CPC, seeking exemption from filing the original and or/fair
typed copies of the dim documents at this stage.
Heard. For the reasons stated in the application, the same is
allowed and eight weeks time is granted to file the clear copies of
documents.
The application is disposed of.
I.A. No.6041/2012 (O 13 R 1 r/w S 151 CPC for exemption)
Heard. Allowed to all just exceptions.
CS (OS) No.871/2012 Page 1 of 12
The application is disposed of.
CS(OS) 871/2012
Let the plaint be registered as a suit.
Issue summons to the defendants, on filing of process fee
and registered AD cover within one week, returnable on 04.05.2012.
I.A. No.6038/2012 (u/O XXXIX, R.1 & 2 CPC)
1. Issue notice for the date fixed.
2. The Plaintiff claims that he is a highly revered spiritual
guide, renowned worldwide for his spiritual discourses as “Nirmal
baba”. He is known for his spiritual teachings and healing powers and
he regularly conducts assemblies across India called „Samagams‟
wherein, he interacts with his followers and offers spiritual guidance.
His preachings are telecasted by over 30 television channels on a daily
basis including Sony TV and Aajtak, SAB and IBN7. He claims that
he has lakhs of followers in India and abroad and plaintiff‟s website
www.nirmalbaba.com is visited by over one million followers in a
month. Hence, he is a person with considerable reputation to protect.
3. The defendant No.1 is a „hubber‟,which means a person or
entity that is registered as a writer who writes articles on any topic on
the defendant No.2‟s website, www.hubpages.com where defendant
No.2 provides webspace and technology to publish the content written
by a hubber.
4. There is a commercial arrangement of earning on the
website between every hubber including defendant No.1 and the
CS (OS) No.871/2012 Page 2 of 12
defendant No.2 through online advertising. Defendant No.2 states
clearly on its website‟s Frequently asked questions under the heading
“Making Money on Hubpages”, that money is earned through online
advertising ( Google AdSense and the HubPages Ad Program ) and/or
affiliate referrals (displayed in the form of Amazon and eBay
Capsules ). Each time a visitor views one of the Hubs, the website of
defendant No.2 displays ads. According to the plaintiff, 60% of the
time, these ads can generate revenue for hubber, and 40% of the time,
the ads can generate revenue for the defendant No.2 if a hubber has
registered for the program.
5. Defendant No.1 is registered as a hubber on defendant
No.2‟s website using the name “ Indijobs”. Defendant No.1 has written
many articles on the website with a view to generate webtraffic leading
to earnings for itself through online advertising programs including
Google Adsense. As per the case of the plaintiff, recently it came to
his notice that defendant No.1 has deliberately written defamatory
articles about the plaintiff on the website with malafide intent of
attracting followers of the plaintiff on the website and making unlawful
earnings through online advertising, thereby, causing serious damage to
the reputation of the plaintiff.
6. As per the plaintiff, the defendant No.1 has written a false
and defamatory article about plaintiff which, the defendant No.2 has
published and the same is titled “Is Nirmal Baba a Fraud?” at
http://indijobs.hubpages.com/hub/Is-Nirmal-Baba-a-Fraud , . In the said
article defendants No.1 and 2 have made false statements about the
CS (OS) No.871/2012 Page 3 of 12
plaintiff that he is “ a suspicious guru ” and have made false and
derogatory imputations by alleging that plaintiff uses „ Vashikaran
mantra’, that is black magic, tantric powers in the following words –
“He is quite confident about his vashikaran mantra by which he can
control the thinking power of anyone on this planet.”..” He looks like
a fraudster masquerading as a spiritual guru .”
7. Plaintiff also avers that defendants No.1 and 2 further
defamed the plaintiff by falsely stating “ Though, Nirmal Baba is no
more offering vashikaran mantra, but it is a fact that his popularity
rose because of this. But, the question remains. How come a mantra
can control someone? It is not mantra, in fact, but it is his
psychological tricks which controls someone. He do know and apply
hypnotism ”. They have accused plaintiff of cheating his followers by
stating “ He is only earning money from gullible people ”.
8. As per the plaintiff, these statements have not only caused
injury to his reputation, but also deeply enraged the sentiments of his
followers and made a mockery of his teachings.
9. The plaintiff has filed few more articles, also written by the
defendant No.1 and published by defendant No.2 which per se contain
derogatory remarks and statements against the plaintiff .
10. It is stated by the plaintiff that he served a cease and desist
legal notice on defendant No.2 on 29.11.2011 calling upon defendant
No.2 to remove the defamatory articles and provide contact details and
name of the defendant No.1, who wrote the said articles. Despite the
CS (OS) No.871/2012 Page 4 of 12
said legal notice, these articles were not removed. Through reply dated
01.12.2011 the defendant No.2 declined to remove the said articles on
ground that the articles merely project a difference of opinion about a
public figure and averred that it is not liable for any third party content
posted on its website and plaintiff should directly communicate with
defendant No.1 asking him to remove the content.
11. By an e-mail dated 24.02.2011 a devotee of the plaintiff
replied to defendant No.2 that the said articles are not simply an
opinion, but, place serious false and defamatory allegations against
plaintiff and requested for details of defendant No.1, so that a legal
notice may be served upon him, which was again declined by defendant
No.2 vide e-mail dated 28.02.2012 stating that the contact details will
not be released without court order and that the content does not violate
its website‟s terms of use.
12. Admittedly defendant No.2‟s own website‟s terms of use
donot allow posting of content that is a malafide or that is aimed as
personal attack or uses extreme profanity. The website‟s FAQ page
provides as under -
“Making Personal Attacks : Debate and disagreements
on points of substance are all right, but personal attacks,
petty bickering, extreme profanity, and thread hijacking
will be dealt with swiftly.”
13. Learned counsel appearing on behalf of plaintiff has also
referred to clause 4 of the terms of use agreement published on
defendant No.2‟s website, whereby defendant No.2 expressly prohibits
CS (OS) No.871/2012 Page 5 of 12
the publishing of defamatory statements against any person. The clause
categorically states :
“4. RESTRICTIONS AND PROHIBITIONS ON USE
In Your use of the Service you must abide by the following
restrictions and prohibitions on use. As a Service User or
Author, You may not:
Publish Hubs or Hub or Author Content that include any
content or links that are pornographic, defamatory, libelous,
tortuous, vulgar, obscene, invasive of privacy, racially or
ethnically objectionable, hateful, promotes or provides
instructional information about illegal activities, promotes any
act of cruelty to animals, or is otherwise offensive.”
By virtue of Clause 5 of the said terms of use agreement,
defendant No.2 has reserved its rights to delete a user‟s account for any
reason. However, prima facie, it appears that despite of notice in the
present case, the defendant No.2 contrary to its terms and conditions, is
not prepared to delete defendant No.1‟s hubpages, despite having
knowledge of the derogatory nature of content posted by defendant
no.1 on the website .
14. In view of the abovesaid act of defendant No.2, it is an
„intermediary‟ within the definition of Section 2(1) (w) and Section 79
of the Information Technology Act, 2000. Under Section 79 (3)(b) of
the IT Act,2000, defendant No.2 is under an obligation to remove
unlawful content if it receives actual notice from the affected party of
any illegal content being circulated/published through its service. He is
bound to comply with Information Technology (Intermediaries
CS (OS) No.871/2012 Page 6 of 12
Guidelines) Rules 2011. Rule 3(3) of the said rules read with Rule 3(2)
requires an intermediary to observe due diligence and not knowingly
host or publish any information that is grossly harmful, defamatory,
libellious, disparaging or otherwise unlawful.
15. Such intermediary is not liable for third party content if, it
removes access to defamatory content on receipt of actual knowledge
.Rule 3(4) of the said rule provides obligation of an intermediary to
remove such defamatory content within 36 hours from receipt of actual
knowledge. The said rule expressly provides as follows-
“ The Intermediary , on whose computer system the
information is stored or hosted or published , upon
obtaining knowledge by itself or been brought to actual
knowledge by an affected person in writing or through
e-mail signed with electronic signature about any such
information as mentioned in sub rule (2) above, shall act
within 36 hours and where applicable, work with user or
owner of such information to disable such information
that is in contravention of sub rule (2).”
16. Prima facie, it appears that the defendant No.2 acted in clear
non- compliance of the said due diligence obligations under the said
rules read with Section 79 of IT Act, 2000 by not removing illegal
information even after it obtained actual knowledge of the same when
plaintiff has served on it cease and desist notice on it on 29.11.2011.
17. Further, Rule 3(5) of the said rules requires an intermediary to
inform its users that in case of non compliance with rules of user
agreement, the intermediary has the right to terminate access or its
usage rights of users and remove non compliant information.
CS (OS) No.871/2012 Page 7 of 12
18. In the present case, defendant No.2 neither removed the
illegal content nor terminated rights of access or usage of defendant
No.1 from its website.
Personal jurisdiction over foreign defendant
19. From the documents filed by the plaintiff , being screen shots
and print outs of the impugned articles it is clear that defendant No.2
conducts business in India and targets Indian visitors. Defendant No.2
published articles about Indian public figure meant for reading by
Indian audience and has other articles written by defendant no.1
amongst others for visitors including Indians. Also, it displays
advertisements next to the articles which pertain to Indian companies.
The web page as on 17.03.2012 shows on
http://indijobs.hubpages.com/hub/Is-Nirmal-Baba-a-Fraud . The website
is interactive and allows visitors to post comments on articles written
by hubber and interact with him. According to the Banyan Tree
Holding ( P ) Ltd vs A. Murali Krishna Reddy and Anr. ( Judgment
dated 23.11.2008 passed in CS (OS) No.894/2008 by the Division
Bench of this Court, it was held that for „effects test‟ to apply where a
forum state is justified in assuming personal jurisdiction over a foreign
defendant , plaintiff must plead and show primafacie that specific
targeting of the forum state by defendant resulted in an injury or harm
to the plaintiff in the forum state in which case the forum state, can
presume jurisdiction over out of state defendant. In view of
abovementioned reasons, plaintiff has sufficiently shown how
defendant No.2 is targeting Indian visitors and transacting business in
CS (OS) No.871/2012 Page 8 of 12
India and that the impugned articles have caused serious disparagement
to the reputation of the plaintiff. Prima facie, the plaintiff has satisfied
this Court that it assumes personal jurisdiction over defendants No.1
and 2.
Impleadment of Defendants 3 and 4.
20. Defendants No.3 is the Designated Authority that is
empowered by Section 69A of the IT Act, 2000 to block a website
from public access interalia, if content on any website or computer
resource is of such nature that it poses threat to public order. In the
present, case due to the publication of these defamatory articles by
defendants No.1 and 2, it is claimed that the followers of the plaintiff
are enraged and there is a threat of disturbance of public order, as the
plaintiff has lakhs of followers in India itself. Thus, the plaintiff is also
pressing for relief to block the defamatory pages about the plaintiff
written on the website of defendant No.2 .
21. Learned counsel appearing on behalf of the plaintiff has also
argued that Section 80 of the C.P.C that prescribes prior notice to the
Central Government prior to instituting a suit does not apply in present
facts of case, as the suit is not in respect of an act done by defendant
No.3 or 4, as public officer and in the suit, no act of defendants No.3
and 4 are challenged or sought to be set aside. Therefore, notice under
Section 80 of the C.P,C is not required in facts of the case. Further,
she referred paras 14 and 15 of the case of Ram Kumar & Anr vs
State of Rajasthan and Ors. ( 2008) 10 SCC 73 . She seeks the order
that interim relief is not sought by the plaintiff against the defendants
CS (OS) No.871/2012 Page 9 of 12
No.3 and 4 but, only to aid in protecting plaintiff‟s interests through
blocking of the defamatory pages.
22. She further states that the defendant No.5 has been impleaded
in the matter as the defendant No.5 is the registrar of the domain
www.hubpages.com that belongs to defendant No.2 . As per clause I(1)
of the Acceptable Use policy published on defendant No.5 website, the
registrant of the website, defendant No .2 is under an obligation not to
publish any defamatory content on the website. The said policy entitles
the Registrar in its sole discretion to suspend or terminate the services
,restrict , or delete content or take other action incase of violation by a
registrant. This policy forms a part of the Registrar/Registrant Service
Agreement between defendant No.2 and 5. It is prayed that the
defendant No.5 should be directed to terminate its agreement for
services with defendant no.2 or atleast delete defamatory pages about
plaintiff from website.
23. In view of the foregoing facts and reasons mentioned above, it
appears that the plaintiff has been able to make out a strong prima
facie case of passing of interim order. The balance of convenience
also lies in favour of the plaintiff and against the defendant Nos. 1, 2
and 5. Incase, interim order is not passed, the plaintiff will suffer
irreparable loss and injury. Thus, till the next date, the defendants Nos.
1 and 2 as well as their agents, partners, associates, servants,
employees, representatives, successors, attorneys and assigns are
restrained from selling, leasing, licensing, writing, publishing, hosting,
advertising, any content, existing or future, that is defamatory about the
CS (OS) No.871/2012 Page 10 of 12
plaintiff whether written by defendant No.1 or any other person on
defendant No.2‟s website hubpages.com or other websites associated
with defendants No.1 and 2 or other print/electronic media within 36
hours from the period when the order passed in the present case is
served. In failure to do so, the directions are issued to defendants No.
5 to block the website hubpages.com from public access within India.
Compliance of Order XXXIX, Rule 3 CPC be made within
three days.
I.A. No.6039/2012 (Section 79 IT Act r/w Section 151 C.P.C)
24. Defendant No.1 has registered himself under the name
“Indijobs” in defendant No.2‟s website hubpages.com. When the
plaintiff served a cease and desist notice on defendant No.2 calling
upon it to remove the defamatory pages from its website and provide
details of defendant No.1, defendant No.2 vide e-mail dated
01.12.2011 declined to disclose the identity of the defendant no.1. As
per Section 79 of the Information Technology Act, 2000 read with
Section 2 (1) (w) of the Information Technology Act, 2000, being an
intermediary, defendant No.2 is under an obligation to disclose identity
of the defendant No.1 to law enforcement agencies. This obligation is
also expressly provided in Rule 3(7) of the IT (Intermediaries
guidelines)Rules 2011. Also, under Section 79 of IT Act, 2000, an
intermediary is liable for third party if despite actual knowledge, it fails
to remove such illegal information, then the court can ask the party to
disclose the identity of the person who is involved therein.
CS (OS) No.871/2012 Page 11 of 12
25. In the present case, admittedly the plaintiff has served notice to
the defendant No.2 to remove the defamatory article but despite having
knowledge, the defendant No.2 declined to remove the same.
26. Under these circumstances, it is directed that on the next date,
the defendant No.2 shall provide the complete details of identity of
defendant No.1 and Author Log in data of defendant No.1 including
contact details, registration data, residence address and IP address to
this court in sealed cover.
Copy of this order be given dasti to the plaintiff under the
signature of Court Master.
MANMOHAN SINGH, J.
MARCH 30, 2012
CS (OS) No.871/2012 Page 12 of 12
+ CS (OS) No.871/2012
% Order decided on : 30.03.2012
NIRMALJIT SINGH NARULA ..... Plaintiff
Through Ms. Karnika Seth, Adv. with
Mr. Amit Seth & Mr. Lakshay
Sawhney, Advs.
versus
INDIJOBS AT HUBPAGES.COM & ORS ..... Defendants
Through None
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.(Oral)
I.A. No.6040/2012 (u/S 151 CPC for exemption)
This application has been filed by the plaintiff under Section
151 of CPC, seeking exemption from filing the original and or/fair
typed copies of the dim documents at this stage.
Heard. For the reasons stated in the application, the same is
allowed and eight weeks time is granted to file the clear copies of
documents.
The application is disposed of.
I.A. No.6041/2012 (O 13 R 1 r/w S 151 CPC for exemption)
Heard. Allowed to all just exceptions.
CS (OS) No.871/2012 Page 1 of 12
The application is disposed of.
CS(OS) 871/2012
Let the plaint be registered as a suit.
Issue summons to the defendants, on filing of process fee
and registered AD cover within one week, returnable on 04.05.2012.
I.A. No.6038/2012 (u/O XXXIX, R.1 & 2 CPC)
1. Issue notice for the date fixed.
2. The Plaintiff claims that he is a highly revered spiritual
guide, renowned worldwide for his spiritual discourses as “Nirmal
baba”. He is known for his spiritual teachings and healing powers and
he regularly conducts assemblies across India called „Samagams‟
wherein, he interacts with his followers and offers spiritual guidance.
His preachings are telecasted by over 30 television channels on a daily
basis including Sony TV and Aajtak, SAB and IBN7. He claims that
he has lakhs of followers in India and abroad and plaintiff‟s website
www.nirmalbaba.com is visited by over one million followers in a
month. Hence, he is a person with considerable reputation to protect.
3. The defendant No.1 is a „hubber‟,which means a person or
entity that is registered as a writer who writes articles on any topic on
the defendant No.2‟s website, www.hubpages.com where defendant
No.2 provides webspace and technology to publish the content written
by a hubber.
4. There is a commercial arrangement of earning on the
website between every hubber including defendant No.1 and the
CS (OS) No.871/2012 Page 2 of 12
defendant No.2 through online advertising. Defendant No.2 states
clearly on its website‟s Frequently asked questions under the heading
“Making Money on Hubpages”, that money is earned through online
advertising ( Google AdSense and the HubPages Ad Program ) and/or
affiliate referrals (displayed in the form of Amazon and eBay
Capsules ). Each time a visitor views one of the Hubs, the website of
defendant No.2 displays ads. According to the plaintiff, 60% of the
time, these ads can generate revenue for hubber, and 40% of the time,
the ads can generate revenue for the defendant No.2 if a hubber has
registered for the program.
5. Defendant No.1 is registered as a hubber on defendant
No.2‟s website using the name “ Indijobs”. Defendant No.1 has written
many articles on the website with a view to generate webtraffic leading
to earnings for itself through online advertising programs including
Google Adsense. As per the case of the plaintiff, recently it came to
his notice that defendant No.1 has deliberately written defamatory
articles about the plaintiff on the website with malafide intent of
attracting followers of the plaintiff on the website and making unlawful
earnings through online advertising, thereby, causing serious damage to
the reputation of the plaintiff.
6. As per the plaintiff, the defendant No.1 has written a false
and defamatory article about plaintiff which, the defendant No.2 has
published and the same is titled “Is Nirmal Baba a Fraud?” at
http://indijobs.hubpages.com/hub/Is-Nirmal-Baba-a-Fraud , . In the said
article defendants No.1 and 2 have made false statements about the
CS (OS) No.871/2012 Page 3 of 12
plaintiff that he is “ a suspicious guru ” and have made false and
derogatory imputations by alleging that plaintiff uses „ Vashikaran
mantra’, that is black magic, tantric powers in the following words –
“He is quite confident about his vashikaran mantra by which he can
control the thinking power of anyone on this planet.”..” He looks like
a fraudster masquerading as a spiritual guru .”
7. Plaintiff also avers that defendants No.1 and 2 further
defamed the plaintiff by falsely stating “ Though, Nirmal Baba is no
more offering vashikaran mantra, but it is a fact that his popularity
rose because of this. But, the question remains. How come a mantra
can control someone? It is not mantra, in fact, but it is his
psychological tricks which controls someone. He do know and apply
hypnotism ”. They have accused plaintiff of cheating his followers by
stating “ He is only earning money from gullible people ”.
8. As per the plaintiff, these statements have not only caused
injury to his reputation, but also deeply enraged the sentiments of his
followers and made a mockery of his teachings.
9. The plaintiff has filed few more articles, also written by the
defendant No.1 and published by defendant No.2 which per se contain
derogatory remarks and statements against the plaintiff .
10. It is stated by the plaintiff that he served a cease and desist
legal notice on defendant No.2 on 29.11.2011 calling upon defendant
No.2 to remove the defamatory articles and provide contact details and
name of the defendant No.1, who wrote the said articles. Despite the
CS (OS) No.871/2012 Page 4 of 12
said legal notice, these articles were not removed. Through reply dated
01.12.2011 the defendant No.2 declined to remove the said articles on
ground that the articles merely project a difference of opinion about a
public figure and averred that it is not liable for any third party content
posted on its website and plaintiff should directly communicate with
defendant No.1 asking him to remove the content.
11. By an e-mail dated 24.02.2011 a devotee of the plaintiff
replied to defendant No.2 that the said articles are not simply an
opinion, but, place serious false and defamatory allegations against
plaintiff and requested for details of defendant No.1, so that a legal
notice may be served upon him, which was again declined by defendant
No.2 vide e-mail dated 28.02.2012 stating that the contact details will
not be released without court order and that the content does not violate
its website‟s terms of use.
12. Admittedly defendant No.2‟s own website‟s terms of use
donot allow posting of content that is a malafide or that is aimed as
personal attack or uses extreme profanity. The website‟s FAQ page
provides as under -
“Making Personal Attacks : Debate and disagreements
on points of substance are all right, but personal attacks,
petty bickering, extreme profanity, and thread hijacking
will be dealt with swiftly.”
13. Learned counsel appearing on behalf of plaintiff has also
referred to clause 4 of the terms of use agreement published on
defendant No.2‟s website, whereby defendant No.2 expressly prohibits
CS (OS) No.871/2012 Page 5 of 12
the publishing of defamatory statements against any person. The clause
categorically states :
“4. RESTRICTIONS AND PROHIBITIONS ON USE
In Your use of the Service you must abide by the following
restrictions and prohibitions on use. As a Service User or
Author, You may not:
Publish Hubs or Hub or Author Content that include any
content or links that are pornographic, defamatory, libelous,
tortuous, vulgar, obscene, invasive of privacy, racially or
ethnically objectionable, hateful, promotes or provides
instructional information about illegal activities, promotes any
act of cruelty to animals, or is otherwise offensive.”
By virtue of Clause 5 of the said terms of use agreement,
defendant No.2 has reserved its rights to delete a user‟s account for any
reason. However, prima facie, it appears that despite of notice in the
present case, the defendant No.2 contrary to its terms and conditions, is
not prepared to delete defendant No.1‟s hubpages, despite having
knowledge of the derogatory nature of content posted by defendant
no.1 on the website .
14. In view of the abovesaid act of defendant No.2, it is an
„intermediary‟ within the definition of Section 2(1) (w) and Section 79
of the Information Technology Act, 2000. Under Section 79 (3)(b) of
the IT Act,2000, defendant No.2 is under an obligation to remove
unlawful content if it receives actual notice from the affected party of
any illegal content being circulated/published through its service. He is
bound to comply with Information Technology (Intermediaries
CS (OS) No.871/2012 Page 6 of 12
Guidelines) Rules 2011. Rule 3(3) of the said rules read with Rule 3(2)
requires an intermediary to observe due diligence and not knowingly
host or publish any information that is grossly harmful, defamatory,
libellious, disparaging or otherwise unlawful.
15. Such intermediary is not liable for third party content if, it
removes access to defamatory content on receipt of actual knowledge
.Rule 3(4) of the said rule provides obligation of an intermediary to
remove such defamatory content within 36 hours from receipt of actual
knowledge. The said rule expressly provides as follows-
“ The Intermediary , on whose computer system the
information is stored or hosted or published , upon
obtaining knowledge by itself or been brought to actual
knowledge by an affected person in writing or through
e-mail signed with electronic signature about any such
information as mentioned in sub rule (2) above, shall act
within 36 hours and where applicable, work with user or
owner of such information to disable such information
that is in contravention of sub rule (2).”
16. Prima facie, it appears that the defendant No.2 acted in clear
non- compliance of the said due diligence obligations under the said
rules read with Section 79 of IT Act, 2000 by not removing illegal
information even after it obtained actual knowledge of the same when
plaintiff has served on it cease and desist notice on it on 29.11.2011.
17. Further, Rule 3(5) of the said rules requires an intermediary to
inform its users that in case of non compliance with rules of user
agreement, the intermediary has the right to terminate access or its
usage rights of users and remove non compliant information.
CS (OS) No.871/2012 Page 7 of 12
18. In the present case, defendant No.2 neither removed the
illegal content nor terminated rights of access or usage of defendant
No.1 from its website.
Personal jurisdiction over foreign defendant
19. From the documents filed by the plaintiff , being screen shots
and print outs of the impugned articles it is clear that defendant No.2
conducts business in India and targets Indian visitors. Defendant No.2
published articles about Indian public figure meant for reading by
Indian audience and has other articles written by defendant no.1
amongst others for visitors including Indians. Also, it displays
advertisements next to the articles which pertain to Indian companies.
The web page as on 17.03.2012 shows on
http://indijobs.hubpages.com/hub/Is-Nirmal-Baba-a-Fraud . The website
is interactive and allows visitors to post comments on articles written
by hubber and interact with him. According to the Banyan Tree
Holding ( P ) Ltd vs A. Murali Krishna Reddy and Anr. ( Judgment
dated 23.11.2008 passed in CS (OS) No.894/2008 by the Division
Bench of this Court, it was held that for „effects test‟ to apply where a
forum state is justified in assuming personal jurisdiction over a foreign
defendant , plaintiff must plead and show primafacie that specific
targeting of the forum state by defendant resulted in an injury or harm
to the plaintiff in the forum state in which case the forum state, can
presume jurisdiction over out of state defendant. In view of
abovementioned reasons, plaintiff has sufficiently shown how
defendant No.2 is targeting Indian visitors and transacting business in
CS (OS) No.871/2012 Page 8 of 12
India and that the impugned articles have caused serious disparagement
to the reputation of the plaintiff. Prima facie, the plaintiff has satisfied
this Court that it assumes personal jurisdiction over defendants No.1
and 2.
Impleadment of Defendants 3 and 4.
20. Defendants No.3 is the Designated Authority that is
empowered by Section 69A of the IT Act, 2000 to block a website
from public access interalia, if content on any website or computer
resource is of such nature that it poses threat to public order. In the
present, case due to the publication of these defamatory articles by
defendants No.1 and 2, it is claimed that the followers of the plaintiff
are enraged and there is a threat of disturbance of public order, as the
plaintiff has lakhs of followers in India itself. Thus, the plaintiff is also
pressing for relief to block the defamatory pages about the plaintiff
written on the website of defendant No.2 .
21. Learned counsel appearing on behalf of the plaintiff has also
argued that Section 80 of the C.P.C that prescribes prior notice to the
Central Government prior to instituting a suit does not apply in present
facts of case, as the suit is not in respect of an act done by defendant
No.3 or 4, as public officer and in the suit, no act of defendants No.3
and 4 are challenged or sought to be set aside. Therefore, notice under
Section 80 of the C.P,C is not required in facts of the case. Further,
she referred paras 14 and 15 of the case of Ram Kumar & Anr vs
State of Rajasthan and Ors. ( 2008) 10 SCC 73 . She seeks the order
that interim relief is not sought by the plaintiff against the defendants
CS (OS) No.871/2012 Page 9 of 12
No.3 and 4 but, only to aid in protecting plaintiff‟s interests through
blocking of the defamatory pages.
22. She further states that the defendant No.5 has been impleaded
in the matter as the defendant No.5 is the registrar of the domain
www.hubpages.com that belongs to defendant No.2 . As per clause I(1)
of the Acceptable Use policy published on defendant No.5 website, the
registrant of the website, defendant No .2 is under an obligation not to
publish any defamatory content on the website. The said policy entitles
the Registrar in its sole discretion to suspend or terminate the services
,restrict , or delete content or take other action incase of violation by a
registrant. This policy forms a part of the Registrar/Registrant Service
Agreement between defendant No.2 and 5. It is prayed that the
defendant No.5 should be directed to terminate its agreement for
services with defendant no.2 or atleast delete defamatory pages about
plaintiff from website.
23. In view of the foregoing facts and reasons mentioned above, it
appears that the plaintiff has been able to make out a strong prima
facie case of passing of interim order. The balance of convenience
also lies in favour of the plaintiff and against the defendant Nos. 1, 2
and 5. Incase, interim order is not passed, the plaintiff will suffer
irreparable loss and injury. Thus, till the next date, the defendants Nos.
1 and 2 as well as their agents, partners, associates, servants,
employees, representatives, successors, attorneys and assigns are
restrained from selling, leasing, licensing, writing, publishing, hosting,
advertising, any content, existing or future, that is defamatory about the
CS (OS) No.871/2012 Page 10 of 12
plaintiff whether written by defendant No.1 or any other person on
defendant No.2‟s website hubpages.com or other websites associated
with defendants No.1 and 2 or other print/electronic media within 36
hours from the period when the order passed in the present case is
served. In failure to do so, the directions are issued to defendants No.
5 to block the website hubpages.com from public access within India.
Compliance of Order XXXIX, Rule 3 CPC be made within
three days.
I.A. No.6039/2012 (Section 79 IT Act r/w Section 151 C.P.C)
24. Defendant No.1 has registered himself under the name
“Indijobs” in defendant No.2‟s website hubpages.com. When the
plaintiff served a cease and desist notice on defendant No.2 calling
upon it to remove the defamatory pages from its website and provide
details of defendant No.1, defendant No.2 vide e-mail dated
01.12.2011 declined to disclose the identity of the defendant no.1. As
per Section 79 of the Information Technology Act, 2000 read with
Section 2 (1) (w) of the Information Technology Act, 2000, being an
intermediary, defendant No.2 is under an obligation to disclose identity
of the defendant No.1 to law enforcement agencies. This obligation is
also expressly provided in Rule 3(7) of the IT (Intermediaries
guidelines)Rules 2011. Also, under Section 79 of IT Act, 2000, an
intermediary is liable for third party if despite actual knowledge, it fails
to remove such illegal information, then the court can ask the party to
disclose the identity of the person who is involved therein.
CS (OS) No.871/2012 Page 11 of 12
25. In the present case, admittedly the plaintiff has served notice to
the defendant No.2 to remove the defamatory article but despite having
knowledge, the defendant No.2 declined to remove the same.
26. Under these circumstances, it is directed that on the next date,
the defendant No.2 shall provide the complete details of identity of
defendant No.1 and Author Log in data of defendant No.1 including
contact details, registration data, residence address and IP address to
this court in sealed cover.
Copy of this order be given dasti to the plaintiff under the
signature of Court Master.
MANMOHAN SINGH, J.
MARCH 30, 2012
CS (OS) No.871/2012 Page 12 of 12