PepsiCo has obtained an interim order from the Delhi High Court to delete hundreds of posts on Facebook, Twitter, Instagram and YouTube, documents obtained by MediaNama reveal. PepsiCo confirmed the development in a statement to MediaNama. These posts, PepsiCo said in its petition, furthered the myth that PepsiCo’s Kurkure corn puffs product contains plastic. The civil defamation suit compiles years of posts on the social media platforms, demanding that they be taken down. There are 3412 Facebook links, 20244 Facebook posts, 242 YouTube videos, 6 Instagram links, and 562 tweets that have been ordered removed. The Delhi High Court pronounced an interim John Doe order, telling the social media platforms to immediately block the posts that the petition brings forward, after considering “just exceptions”. A John Doe order, known as an “Ashok Kumar” order in India, allows the company to get posts deleted from any unnamed person. The petition was first reported by Mint when it was limited to a few Lay’s chips-related posts.

The next date of the hearing in this case is 14th of November this year. As far as we know, this is the first reported instance of a private company getting social media platforms to take down content at this scale in India. This does remind us of IIPM getting websites critical of them blocked.

In a statement to MediaNama, PepsiCo said, “This step has been taken to protect our brand equity, a matter that we take very seriously at PepsiCo.” The company’s full statement is at the end of this article. It did not comment on whether it has obtained, or sought to obtain, similar orders in other countries.

In our questionnaire to PepsiCo, MediaNama had asked: Why did PepsiCo file this case? Is this the first time PepsiCo has obtained a court order to remove discussion of its products online in India? Has PepsiCo obtained, or sought to obtain, similar orders in other countries where it operates? Was due diligence done by PepsiCo to ensure that humorous tweets that are discussing this myth in jest are not censored as a byproduct?

Years of tweets ordered withheld, including jokes

Not all the content that was taken down was defamatory. In February, the novelist Samit Basu joked about Kurkure’s taste on Twitter, saying, “I’ve gone from having zero thoughts about Kurkure to complete and utter conviction that they are made entirely of plastic.” PepsiCo India responded to his tweet, saying “We know you have quite the talent at fantasy writing!” Three months later, the company sued Twitter to take that tweet down, along with hundreds of others. This month, the Delhi High Court ordered that Twitter block those tweets. Now, users in India trying to see Basu’s tweet see this screen:

In 2014, Prasanto K Roy, who is now the Vice President of the industry association NASSCOM’s Internet, Mobile and E-Commerce council, said in a conversation that a lot of people get news on WhatsApp. In that tweet, Roy imitated the kind of fake news forward that PepsiCo said was defaming its product: “Did you HEAR the news?!! Kurkure has plastic! Coke melts teeth”. When PepsiCo’s Twitter handle for Kurkure responded saying that such rumours are false, Roy pointed out that he was merely satirizing those tweets. That clarification doesn’t seem to have helped — Roy’s tweet has since been taken down by Twitter in India.

See the list of tweets withheld in India here: Part 1, Part 2

“It is our policy to notify users of requests for their account information prior to disclosure unless we’re prohibited from doing so,” Twitter said in emails sent to users whose tweets are included in PepsiCo’s petition. It’s unclear if Google and Facebook did the same thing.

On being contacted by MediaNama, PepsiCo’s legal representative in the case declined to share lists of posts ordered to be deleted on other social media platforms. Some Facebook and YouTube links are available here.

Tweets all the way from 2014 — and perhaps before that — have been withheld by Twitter in India.

PepsiCo also asked for a list of 242 videos to be taken down, and in an interim order earlier this month, the Delhi High Court told the social media companies to remove all “similar” videos in addition to the ones that are mentioned in the petition. A lawyer for the respondents cited the Supreme Court’s Shreya Singhal judgement, and argued that intermediaries have limited liability when it comes to proactively seeking out offending content, and that it was “humanly impossible” to automatically find and block videos that the petitioner has not brought forward.

Lawyer’s accidental note

A lawyer for PepsiCo seemed to have doubts about the petition working, which they seem to have forgotten to delete from a document submitted to court. “We can only report the profile on Twitter while using the defamatory option, which we feel might not be useful for our purposes,” they said. “Should we go ahead anyway?” They did go ahead anyway — at least they did so with individual posts — and it worked. The posts they have listed have been taken down.

The petition

The petition says that PepsiCo’s packaged snack product Kurkure has been adversely impacted by rumours. The most common rumour is that Kurkure contains plastic. “By virtue of the extensive use and vast publicity of Kurkure, today it enjoys immense reputation and goodwill,” the suit says, before going on to describe the damage done to that reputation.

In 2013, the petition says, PepsiCo found out that there were videos featuring people burning Kurkure and “disparaging and denigrating” it, featuring the snack being burned. The people in the videos were “burning Kurkure and claiming it to contain plastic and also maliciously claiming that Kurkure are harmful for consumption”. PepsiCo says Facebook removed these videos after they used the “Report Abuse” option on the site.

The petition states that despite taking proactive steps and initiatives like public tours of the factory where Kurkure is manufactured, “instances of the defamatory and disparaging content” continued to circulate. At this point, the social media companies said they would only take down content if they got a court order, while YouTube never responded to PepsiCo.

“The contents/statements in the Video/posts are false and defamatory to the Plaintiff,” the petition argues.

“Any food item containing carbohydrate, oil and protein, will burn when exposed to fire,” the petition said, listing out a series of safety certifications its products and factories have received. “It is apparent from the contents of the Video that it is not part of any bonafide public information, but an endeavour to tarnish the image of the plaintiff,” the petition argues, saying that it has been uploaded on the defendants’ websites with complete disregard to Indian laws.

PepsiCo said it has invested more than ₹2 crores to dispel the Kurkure rumours. “The loss suffered by Plaintiff is directly on account of the wrongdoings of the Defendants,” the petition says.

Under the Information Technology (Intermediaries) Guidelines Rules, 2011, the petition says, the social media sites should have taken down the defamatory posts and videos upon notice. By letting the videos stay, the companies “aided and abetted” the defaming of Kurkure, the petition says. “The defendants do not play a passive role in facilitating postings on the Internet, and are deemed to become a publisher” after receiving notice, the petition says.

The petition further argues that the companies didn’t follow the Terms & Conditions of their own websites by letting the content stay.

The petition demanded damages worth ₹2.1 crore from the defendants in addition to the links being ordered blocked. The plaintiffs also said that “similar videos” should be blocked, while a lawyer for the respondents said that would be “humanly impossible” to do.

The prayers include i) a demand to remove all the ‘impugned’ content from Facebook and WhatsApp, ii) an injunction to take down the links and posts, iii) an injunction directing the defendants to take down all reported links in the future, iv) injunction against any John Doe from spreading such defamatory content, v) & vi) damages worth ₹2.1 crore plus the legal costs of the case.

In June, the Delhi High Court ordered that the websites delete the content, and provide a sealed envelope with the identities of the people who published the posts, as available with the social media companies.

All emphasis added.

Read PepsiCo’s petition and the Delhi High Court’s interim order

Twitter India withholding tweets

The only other reported instances of Twitter withholding content that we are aware of are i) withholding the jailed godman Gurmeet Ram Rahim Singh Insaan’s profile in India under request by the Haryana Police, and ii) withholding tweets and profiles of people posting Kashmir-related content under orders from MeitY. Tweets withheld in India are not removed from Twitter — they’re just not visible to users who have set their country as “India” from Twitter Settings. They can also be accessed using a Virtual Private Network (VPN). The Facebook and YouTube posts cited in one of the High Court’s orders in the case are also geo-restricted and not removed.

Twitter has a policy against permanently taking down tweets, and only restricts access geographically (copyright cases are dealt with differently).

MediaNama’s take

This is censorship, plain and simple. Roy and the novelist Basu’s tweets were clearly either humorous or referencing the rumour, rather than spreading it. And yet, their tweets have been indiscriminately blocked, along with tweets that supposedly spread it. This case is similar to the incident last year where John Doe orders obtained by Bollywood studios seeking to block a long list of torrent and filesharing websites ended up inadvertently with the Internet Archive getting blocked in India. In this case, though, the defendants are not just nameless John Does — they are the very social media and internet companies that usually mount a fierce defense in other countries for free speech and transparency.

The lack of due diligence done by PepsiCo in some of the tweets deleted — which were clearly jokes — also doesn’t bode too well for the standards required for takedowns at this scale to happen.

PepsiCo’s full statement

Here is the company’s full statement sent to MediaNama: