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Bombay court foils Twitter India’s attempt to distance itself from FAU-G defamation suit

Concept image of FAUG game
A concept image of FAUG game released on September 4, 2020.

Twitter India’s attempt to distance itself from a defamation suit filed by the makers of the upcoming videogame FAU-G has failed. GOQii and nCore Games, the latter of which is developing FAU-G, had filed a suit against unknown persons (John Doe) for allegedly defaming them on social media websites like Twitter, Facebook and YouTube, by claiming that FAU-G had actually been developed by late actor Sushant Singh Rajput. The companies petitioned the Bombay City Civil Court, which issued a “John Doe” order, requiring the websites to taken down all such defamatory content.

Twitter India (Twitter Communications India Pvt. Ltd.) was one of the parties GOQii and nCore Games named in their petition as defendants. However, Twitter India argued that it had no say in the operations of the Twitter platform. It said all operations, such as taking down of content, could only be done by its parent company Twitter Inc., which is incorporated in the US. Hence, Twitter Inc. was the right party in the suit, it said, and hence Twitter India should be deleted from the suit.

The court was unconvinced — it ruled on Wednesday that Twitter India was a subsidiary of its parent party, and hence is a “proper party”, and dismissed the request.

The Sushant Singh Rajput conspiracy: GOQii and nCore Games, in their petition to the court, claimed that several people on the internet were targeting and defaming them by spreading rumours that FAU-G was conceptualised by Sushant Singh Rajput, along with Samir Bangara, a former colleague of Vishal Gondal, CEO of GOQii and a co-founder of nCore Games.  The companies submitted a barrage of evidence in the form of tweets, Facebook posts, YouTube videos, tweets and so on, which claimed that the game had been stolen from Rajput just days before his death. The rumours spread like wildfire over the social media platforms, and were allegedly causing “irreparable damage” to the two companies, their promoters, employees and so on.

FAU-G was announced on September 4, just two days after popular video game PUBG was banned in India. It was unveiled by actor Akshay Kumar, as an Indian-made app, as opposed the ‘Chinese’ PUB-G.

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The Bombay City Civil Court, after hearing the petitions, granted interim protection to GOQii and nCore Games and issued a “John Doe” order, which meant that any such rumours posted by anyone on social media platforms such as Facebook, Twitter, YouTube and LinkedIn would have to be taken down by the respective companies.

Along with the unnamed persons, the petition had named both Facebook India, Facebook Inc. (incorporated in the US), Twitter Communication India, YouTube India, Google India and LinkedIn India.

Twitter India argues it is not the right party

Right from the start, Twitter India has argued that that it is not the right party in the suit. It had earlier replied to GOQii and nCore Games’ email notices saying that it had no role to play in the operations of the Twitter platform, which is handled by its parent organisation in the US. Reiterating this argument, Twitter India requested the court on September 30 that it be deleted as a defendant in the suit.

  • ‘Not possible for us to take down content’: Twitter India’s counsel said that Twitter Communication India and Twitter Inc. were separate legal entities, hence it isn’t possible for it take down content on the platform even if directed to do so by the court.
  • ‘Terms and Conditions’ argument: Twitter India’s overall argument largely relied on the Twitter platform’s Terms and Conditions, specifically Clause 3, to indicate that Twitter Inc. is the party that decides what can stay on the platform. The counsel also referred to prior judgements by the Delhi High Court in a case between Kamadhenu Limited and Jindal Steel, and another by a Civil Judge in Gurugram between DHFL Pramerica Life Insurance and Twitter. In both cases, Twitter India argued, the courts had ruled that only Facebook Inc. could comply to their orders, and not Facebook India, which was then deleted as a defendant.

GOQii and nCore Games’ counsels “strongly opposed” Twitter India’s arguments. They said that they had been able to demonstrate how Twitter India provided promotional and marketing services to Twitter Inc., hence it can be defined as an “intermediary” under the Information Technology Act, 2000. They added that Twitter India collected revenues for Twitter Inc. and has an “important and crucial role in running” the platform and hence was a necessary party.

Court refuses to entertain Twitter India’s plea

The court on Wednesday dismissed Twitter India’s request, noting that Twitter India was indeed a subsidiary of Twitter Inc. It said that Twitter India is a “necessary and proper” party.

Even if Twitter Inc. is added as a party defendant in the suit in view of the chamber summons taken out by the plaintiff, still defendant no. 3 [Twitter Communication India Pvt. Ltd.] can be treated as a proper party in any case — Bombay City Civil Court

The court noted that it could not find “any substance” in Twitter India’s request and hence liable to be dismissed. However, it refused to declare whether Twitter India could be considered an intermediary, and said this would be determined in the coming days.

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