Hydra-Headed Form of Infringement- Delhi High Court Reiterated the Liabilities of Intermediaries!

In a recent judgement, passed by Hon’ble Justice Prathiba M Singh, IP Division, Delhi High Court, in the case titled as Neetu Singh & Anr. Vs. Telegram FZ-LLP CS (Comm.) 282/2020, the Court while deciding Plaintiff’s application under Order XI CPC seeking discovery of the details of the persons who are operating these channels, in a copyright infringement suit, adjudicated upon several other issues regarding ‘Right to Privacy of Individual’, Jurisdiction of Indian Courts on intermediaries having server outside India’, requirement of disclosure of information to Indian Courts’ among others.  

Plaintiff Neetu Singh, a known author of books, designed to prepare aspirants for a variety of competitive examinations i.e. SSC, PO, CDS, NDA, etc., and the founder of the coaching institute K.D. Campus (hereinafter Plaintiffs), instituted the suit against Telegram, alleging that her copyrighted course material, including in the book titled as ‘Plinth to Paramount’, video lectures and other works, are being distributed unauthorisedly though various Telegram channels. It was also alleged that despite being taken down, such channels mushroom up every day and the identity of the users is masked in the Platform

Telegram as we know, it a famous internet-based messaging platform, where users can transmit text messages, audio and videos files, photographs and documents etc.

In the present suit, Plaintiffs had sought permanent injunction against Telegram and the unknown users (impleaded as John Does) from reproducing, publishing, distributing, selling, offering for sale, circulating and unauthorized use of the literary work in the book ‘Plinth to Paramount’, lectures, videos, notes and any other original work of the Plaintiffs; on its platform. An interim order was passed by the Hon’ble Court in favour of the Plaintiff on the statement of the senior Counsel appearing for Telegram that it will take down the offending channels within 36 hours of receiving intimation, was later modified September 23, 2020, with directions to Telegram to take down the 201 impugned channels irrespective of the fact whether they are private or public channels.  

Telegram opposed Plaintiff’s discovery application, primarily on the following grounds:

(a) That the ad-interim injunction order of take down of the impugned channels, is sufficient to protect Plaintiffs’ interest;

(b) As per Telegram’s Privacy Policy, only in case of terror suspect, a subscriber’s information can be disclosed;

(c) Placing reliance on ‘Justice KS Puttaswamy v. Union of India & Ors., (2017) 10 SCC 1’, it was argued that unless there is a law which requires disclosure of such information, the privacy of the subscriber, will be protected under Article 21 of the Constitution as well as violation of freedom of speech and expression under Article 19(1)(a);

(d) Telegram’s servers are located in Singapore and the data is encrypted. Also, it is a company incorporated in Dubai. Hence, a Court in India would not be empowered to direct disclosure of the information relating to the subscriber who may be running the allegedly infringing channels;

(e) There is no valid ground for directing discovery, as the Plaintiffs have not proven how the private user data sought to be disclosed is material or relevant to the present suit’s adjudication, as required by the CPC.

(f) As per Section 72A of the IT Act, 2000, disclosure of information in breach of a lawful contract i.e. the contract between Telegram and its subscriber/creator of the impugned channels, would also be contrary to law and could constitute an offence.

The Court discussed the manner in which private and public channels are operated on Telegram platform as well as secret chats wherein, the phone numbers cannot be traced and the identity of the user remain unknown, in addition to its policies. The Court viewed the screen shots of Telegram channels, which show that the channel operators are brazenly using the Plaintiffs’ name, image, and referring to the course material with her name. The Court also noted the fact that operator of one of the private channels, was charging amount from others for sharing the sharing the Plaintiffs’ course material unauthorisedly.

The Hon’ble Court was not impressed with the defenses taken by Telegram and decided the application against it, while answering some important legal issues in the following manner:

A. Jurisdiction of Indian Courts:

The Hon’ble Court took judicial notice of the fact that Telegram is one of the most popular messaging applications in India. Its subscription base runs into millions of users and considered the following factors to assume its jurisdiction

(a) the infringement is continuing within India and in order to protect the rights of copyright owners, Courts in India would be entitled to pass such orders as are effective and required for enforcement of the copyright owners’ rights;

(b) the copyrighted material is related to Indian examination materials, in all likelihood the source of the infringing channels being in India, the accounts of such infringing channels would have been created from India and the data of such accounts would have been uploaded from India;

(c) Telegram nowhere disputed that the devices used in circulating the infringing material are not located in India;

(d) As per Telegram’s own Privacy Policy, even if the data is stored in a physical structure outside India, the same is accessible to the company in other jurisdictions including from India and the data is shared among Telegram’s group companies in Dubai and British Virgin Islands. Therefore, the data is accessible across different jurisdictions, including India and the conventional concepts of territoriality no longer exist;

(e) Telegram is actively making its services available in India and now even earning revenue from India, by its Premium services. In this regard, under the IT Guidelines 2021 relied upon by Telegram relies upon, there is an obligation on it to appoint necessary grievance officer(s) in India;

(f) reliance was also placed upon Indian Bank v. Satyam Fibres (India) (P) Ltd and Krishan Yadav v. State of Bihar, where it has been repeatedly held that High Courts are vested with inherent powers to enable themselves to maintain their dignity, and secure obedience to their process and rules, i.e., and to give effective relief. Hence, Indian Courts would be the natural forum of jurisdiction in this dispute and Telegram cannot escape the rigours of orders passed by competent Courts in India.

B. Requirement of disclosure of user’s data:

The Hon’ble Court while re-emphasizing on the need of grant of damages in a suit for copyright infringement, hold that ‘Take down’ or blocking orders are merely token relief for the interregnum and without monetary relief of damages, coupled with mushrooming of infringing platforms, the copyright owner’s spirit to create and write may be considerably negated. Thus, unless and until the identity of the operators of these channels – who are ex facie infringers of the Plaintiffs’ copyright – are disclosed, the Plaintiffs are rendered remediless for recovering damages. The Hon’ble Court also hold that Disclosure of such information is relevant and material to the present case and Even applying the broad principles of Order XI CPC, the Court can direct disclosure of documents and information relating to ‘any matter in question in a suit’ and in the present suit, the most important information is the details relating to the origin of the infringing copies of the copyrighted works.

C. Remedies available to Plaintiff:

The Hon’ble Court very closely scrutinized the provisions of the Copyright Act, 1957 and hold that Electronic devices including smart phones, computers, servers, and such other devices, which permit copies to be made and to be disseminated would undoubtedly fall within the said definition of “plate” under section 2(t) of the Copyright Act and the definition of “infringing copy” under section 2(m) of the Copyright Act, is broad enough to cover electronic copies which are circulated on Telegram channels. Hence, the Court may direct seizure of the “infringing copies” including the “plates” used for creating such copies and as such plates, including mobile devices and servers, can be directed to be recovered. In the present case, the only party that is in possession of the information relating to the devices used, IP addresses used, channels created, number of users, identity of the devices through mobile numbers etc., is Telegram.

(D) Plea of violation of fundamental rights of user(s):

The Hon’ble Court held that disclosure of the details of the channel operators who are disseminating materials infringing the copyrighted works, or the devices and other gadgets used, pursuant to an order passed by a Court of law, cannot be shielded under the grounds of protection of privacy or protection of freedom of speech and expression, as disclosure of such data pursuant to a Court order would not fall in the definition of “processing”, which is the only activity that is restricted by the infringing users’ fundamental rights. Telegram’s own privacy policy does not recognize the defence, which has been canvassed before this Court. The right to freedom of speech or the right to life including the right to privacy cannot be used by any person or entity, let alone an infringer, in order to escape the consequences of illegal actions.

The Hon’ble Court noted that in K.S. Puttaswamy, Supreme Court recognizes that if there is a law in existence to justify the disclosure of information and there is a need for the disclosure considering the nature of encroachment of the right then privacy cannot be a ground to justify non-disclosure, so long as the same is not disproportionate. In India, the Copyright Act is clearly a law, which In India, the Copyright Act is clearly a law, which requires “infringing copies” to be taken into custody.

While allowing Plaintiff’s discovery application, the Hon’ble Court directed Telegram to disclose the details of the channels/devices used in disseminating the infringing content including mobile numbers, IP addresses, email addresses, etc., used to upload the infringing material and communicate the same, as per the list of channels filed along with the present application. Also, the data relating to the infringing channels and the details as to the devices/servers/networks on which they are created, their creators, operators including any phone numbers, IP addresses, email addresses, used for this purpose shall be disclosed by Telegram within a period of two weeks thereafter and directed to be in a sealed cover in the Court.

Apart from deciding the important legal issues, the Hon’ble Court found it worth noting that “during the COVID-19 pandemic, teachers and the education system as a whole, have taken great initiative to ensure access of educational materials to students through online modes such as videos, PDF documents, etc. If the protection of copyright is not evolved as per the changing times, it would have a chilling effect on the progressive initiatives taken by educators in sharing their materials and ensuring accessibility.”

“In the present age of cloud computing and diminishing national boundaries in data storage, conventional concepts of territoriality cannot be strictly applied. The dynamic evolution of law is essential to ensure appropriate remedies in case of violation of copyright and other IP laws.”

The Judgement would assist the Indian Courts in curbing the menace of digital piracy, copyright infringement as well as violation of other IP rights in the digital era and enforce the IP Rights in their true sense.

Vikrant Rana is the Managing Partner, Priya Adlakha is an Associate Partner and Shlipi Sinha is an Associate at SS Rana & Co.