The Delhi High Court in a case of Copyright Infringement directed Telegram to disclose the identities of creators who are involved in infringing the work of the Plaintiff.
The Bench opined that the growth of technology cannot be a reason to diminish the significance of protection and enforcement of rights such as the rights of copyright owners.
It was held that the infringers cannot seek protection under the garb that Telegram’s data server is located in Singapore as Telegram runs its massive operation in India and so it will have to work in consonance with the Indian laws.
Further, concerning the remedies and reliefs available to the copyright owners, the High Court opined that by granting an only injunction and no right to claim monetary damages, the relief would be toothless as the infringer in such a case is not deterred from creating new channels and taking advantage of the work of the Plaintiff.
Opining that in today’s world when most of the exchange happens via online platforms, provisions of the IT Act and rules have to be harmoniously read with the Copyright Act, the Court opined that if protection of the Copyright Act is not given a dynamic interpretation, there will be a chilling effect on those who share their materials via online platform to ensure accessibility.
Brief Facts:
Plaintiff No. 1 is a renowned author of various books designed to help students in competitive exams like SSC, PO, CDS, etc., and a coaching centre (Plaintiff No. 2 in the suit) for the same was founded by Plaintiff. Defendant No.1 is Telegram which is an app that enables the transmission of text, audio and video files, images, etc.
It was alleged by Plaintiffs that the copyrighted work including videos, books, etc. of Plaintiff No.1 is disseminated unauthorizedly via Telegram channels. The Plaintiffs contended that as per the privacy policy of Telegram any abuse can be reported to Telegram and hence, Plaintiff No.1 reported the said illegal dissemination. Telegram took down the channels, however, some channels continue to persist and every day new channels come up.
Therefore, the Plaintiffs have approached the present Court in light of repeated channels over which dissemination of infringing copies of the copyrighted work of Plaintiff No.1 is carried out.
The present suit has been preferred by Plaintiffs seeking a permanent injunction and restraining the Defendants against unauthorized dissemination of the videos, lectures, and books of Plaintiff. Presently, the Plaintiffs have filed an application under Order XI Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) to seek discovery of the details of those who are operating the said channels.
Contentions of the Plaintiffs:
It was argued that as per the privacy policy of Telegram, Telegram is liable to disclose information related to those channels that are involved in authorized dissemination. It was contended that even after taking down the channels as per the interim order of this Court, new channels come up every day. Therefore, it is important that the identities of the person handling these channels are disclosed, so that proper remedies can be availed by the Plaintiffs.
Contentions of the Respondent No. 1 (Telegram):
It was argued that the interim order directing Telegram to take down the channels is enough to protect the interest of the Plaintiffs. The privacy policy of Telegram is clear that unless a person is expected to be a terror suspect, the disclosure of the identities of the subscriber cannot be made. It was further contended that the data is stored in data servers in Singapore, and such disclosure is prohibited under the laws of Singapore.
Relying on the judgment of Justice K.S. Puttaswamy v. Union of India & Ors. (2017 10 SCC 1) (hereinafter referred to as “Puttaswamy case”), it was contended that direct disclosure of identities is protected just like how privacy is protected under Article 21 of the Constitution.
Relying on Rule 4 of the Information Technology Intermediary Guidelines and Digital Media Ethics, 2021 (hereinafter referred to as “IT guidelines”) it was argued that unless a situation as provided in 1st proviso to Rule 4(1)(2) arises, even Court cannot pass an order directing disclosure of the basic subscriber information.
Lastly, relying on Section 72A of the Information Technology Act, 2000 (hereinafter referred to as “IT Act”), it was argued that disclosing identities would be a breach of contract between the Telegram platform and the subscriber.
Observations of the Court:
The main point for consideration in the present case was whether Telegram can be directed to disclose the identity of the creators of the channels involved in disseminating copyrighted work.
It was noted by the Court that the creators can mask their identity as even after taking down of channels, new channels are being created and by disseminating copyrighted work, charges are also collected by the infringers.
Plaintiff submitted that Telegram allows both public and private channels for operating business. In the case of private channels, details of users such as phone numbers will not be visible, and this data is exclusively available with Telegram. It was noted by the Court that after blocking channels, the operators started running the business via a private channel to hide their identity. The accounts are blocked but the operator then creates another using a private channel to mask their identity and with these countless accounts can be opened.
It was remarked by the Bench that blocking channels is not the solution as there is no end to this cycle. It is because of this that Plaintiff asked for disclosure of the identity of the creators.
Regarding the disclosure of identities, Telegram contested that Telegram is a Dubai-based company and so the laws of Dubai will be applicable. It was argued that being a third-party platform, Telegram is only liable to remove infringing content which it will. It was contended that if the new channel feature for channel creators is disabled then it will be a violation of the right to freedom of speech and expression.
Concerning the jurisdiction of the Court, it was propounded that Plaintiff resides in Delhi, the infringement happened in Delhi as the work of Plaintiff is being circulated in Delhi and even though the identity of the creators is not revealed yet, there is a possibility that the creators are Indians and therefore, the present Court has jurisdiction to entertain the suit.
Further, the High Court opined that circulating the work of Plaintiff over which he has copyright via Telegram channels classifies as “communication to the Public” and will constitute copyright infringement.
It was expounded by the Delhi High Court that the growth of technology cannot be a reason to diminish the significance of protection and enforcement of rights such as the rights of copyright owners. The provisions are given a broad and liberal interpretation for situations like the present one. The definition of “infringing copy” includes electronic copies as well which are circulated on Telegram channels using phones, computers, etc. It was further held that the devices of the channel operators which permit such transmission constitute “plates” as per Section 2(t) of the Copyright Act, 1957. It was held by the Bench that the location of the data server being outside is not a defence to copyright infringement.
Further, concerning the remedies and reliefs available to the copyright owners, the High Court observed that apart from the injunction, another significant remedy is the right to damages. This remedy acts as a deterrent against further infringement. If only an injunction is granted and no right to claim monetary damages is given, the relief would be toothless as the infringer in such a case is not deterred from creating new channels and taking advantage of the work of the Plaintiff. Further, it was noted that without the disclosure of identities, the remedies for recovering damages would be fructuous and the Plaintiffs would be left remediless and the same cannot be the legislative intent. The protection of owners of the copyright is a matter of public policy as a continuous infringement of their work diminishes the quality and spirit of the owners.
It was held that the infringers cannot seek protection under the garb that Telegram’s data server is located in Singapore as Telegram runs its massive operation in India and so it will have to work in consonance with the Indian laws. Noting that Singapore is a WTO country and a signatory to the Berne Convention, it was opined that the work of the Plaintiff would be protected there also, and such protection comes under reciprocal protections wherein India recognizes copyright in foreign work and vice-versa.
Granting injunctions is not a sufficient remedy as new channels come up every day. Also, Order XI of the Code of Civil Procedure, 1908 gives ample powers to the Court to direct the production of any documents and information relating to any matter in question. Further, unless the identity of the creators is disclosed, none of the remedies would be fruitful. It was held by the Court that protection under the right to privacy or freedom of speech and expression cannot be taken to refuse disclosure of the identity of those who are infringing the rights of copyright owners. The High Court also held that fundamental rights cannot be used by anyone let alone infringers to escape the consequences of illegal actions.
The decision of the Court:
Opining that in today’s world when most of the exchange happens via online platforms, provisions of the IT Act and rules have to be harmoniously read with the Copyright Act, the Court opined that if protection of the Copyright Act is not given a dynamic interpretation, there will be a chilling effect on those who share their materials via online platform to ensure accessibility.
The Delhi High Court expounded that the traditional concept of territoriality cannot be stringently applied when times are changing, and based on the above-mentioned reasons, directed Telegram to disclose the identities of the creators who are involved in copyright infringement.
Accordingly, the Application was dismissed.
Case Title: Neetu Singh & Anr. V. Telegram FZ LLC & Ors.
Coram: Hon’ble Ms. Justice Pratibha M. Singh
Case No.: CS(COMM) 282/2020
Advocates for Plaintiffs: Advs. Ms. Rajeshwari H. & Ms. Swapnil Gaur
Advocates for Defendants: Advs. Mr. Amit Sibal, Ms. Anushka Sharda, Mr. Madhav Khosla, Ms. Smriti Nair, Mr. Vinay Tripathi, Mr. Madhav Chitale, Mr. Aishwary Vikram and Mr. Saksham Dhingra
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