Internet Shutdowns, Privacy, Data Protection and Retention, Respecting Intellectual Property, Intellectual Property
In re Law No. 2009-669 furthering the Diffusion and Protection of Creation on the Internet
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The High Court of Delhi ordered the disclosure of personal data of individuals who were circulating infringing material, finding that their identities were not protected by the right to privacy as they were undertaking illegal activities. The Plaintiffs filed the suit to prevent the violation of their intellectual property rights after the original infringing material was taken down, but fresh versions of it were posted on newly created channels. Hence, the Plaintiffs sought information relating to the identities of the individuals involved in the continued spread/sharing of the infringing material. Telegram argued that disclosing the identities of the posters would result in violations of the fundamental right to life and personal liberty, and freedom of expression as envisaged in the Indian Constitution. The Court was of the opinion that these rights cannot prevent an infringer from facing the consequences of illegal actions. The Court finally directed Telegram to disclose all the details including mobile numbers, IP addresses, email addresses, etc. of the channels/devices which were involved in spread of the infringing content to the court in a sealed cover.
In this case, Ms. Neetu Singh and K.D. Campus Pvt. Ltd. (the plaintiffs) approached Telegram after discovering the unauthorised use and sharing of their video lectures, books and other educational materials on the Telegram platform and requested they take down the channels involved in such dissemination. Although some channels were taken down, the issue was not totally resolved as some of such Telegram Channel were still present and more such channels were being created. Therefore, the plaintiffs herein approached the High Court of Delhi seeking permanent injunction against the defendants and restriction from unlawful sharing of the copyrighted materials along with damages and cost [p 3-6].
Justice Pratibha M. Singh of the High Court of Delhi delivered this judgement. The main issue for consideration before the court was whether the defendants could be directed to disclose the identity of the individuals involved in distribution of the infringing materials [p. 13].
The defendants contended that first, personal data of the channel creators could not be shared; second, since the servers of the defendants were based in Singapore, the disclosure of such data was barred as per the law of the Singapore; third, the prerequisites as per the IT Guidelines which required the disclosure of such personal information of the creators were not fulfilled; fourth, barring the creation of new channels would result in the infringement of freedom of expression [p. 14-20]. With regard to the actions taken by the defendants, the court observed that despite the injunction order, plaintiffs’ work was being distributed by the infringers under hidden identities and “repeated blocking of the channels was proving to be insufficient” [p. 19]. The court came to the conclusion that it was vested with the necessary jurisdiction to hear the matter, [para 27, 45(i)] and that the copyright of the Plaintiffs had in fact been infringed [p. 28 & 30].
With regard to the protection of copyrights, the court observed that “the significance of the protection and enforcement of such rights cannot be diminished, merely due to the growth of technology, which has made infringers easy to hide and conceal their illegal activities” [p. 39]. The court also analysed the provisions of PDPA, and observed that one of the recognized exceptions to privacy under the Singaporean Statute was violation of law which allowed the revelation of details of the persons involved in the original posting of the infringing materials [para 45(ii)]. The court also observed that an automatic protection was granted to the members of WTO countries, which included Singapore as well, thus making the plaintiffs’ work protected in Singapore as well by virtue of Singapore being a WTO country and a signatory to the Berne Convention. The court, taking into account the position of international law with regard to the protection granted to the intellectual property rights, came to the conclusion that the defence of compliance with local laws will not shield Telegram from disclosing the information pertaining to the individuals and the channels which were sharing the infringing materials [p. 45(iii)].
With regard to the defendants’ submission that it was obligated not to disclose the details of the originator of the infringing material by virtue of it being an intermediary, the court opined that only taking down of the channels involved in sharing of the infringing materials was not sufficient of a remedy. The court stated that “the channels are clearly hydra-headed and are surfacing one after the other” [para 45(iv)]. Further, with regard to the IT Guidelines, the court after analysing My Space Inc v. Super Cassettes Industries Ltd., (2017) 236 DLT 478 (DB) was of the opinion that the guidelines did not absolve the defendants from protecting the IP rights of the owners [para 45(v)]. With regard to the nature of the infringement involved in the present case, the court stated that “the infringement has to be nipped in the bud, without which Courts would have to continue to repeatedly pass injunction orders against mushrooming channels containing infringing content. The court cannot perpetually supervise such infringements and, thus, the origin and source of the infringing material has to be traced and such devices or persons involved in the infringement ought to face consequences in accordance with law, including being held liable for damages” [p. 45(vi)].
The court observed that the disclosure of the personal data of the individuals related to the infringing materials is not a protection granted as per the fundamental rights, primarily the right to privacy, of the individuals who were circulating the infringing material [p. 45(ix)].
The defendants had also contented the protection of right to privacy as under Article 21 of the Constitution of India as well as protection of freedom of speech and expression under Article 19(1)(a) of the Constitution of India. The court, however, stated that “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” [p. 45(x)].
The court herein made a reference to K.S. Puttaswamy and observed that the requirement for compromising the privacy of an individual on behalf of the state is the presence of a law which rationalises the disclosure of personal information of an individual along with the need of such a disclosure with regard to the extent of the infringement of a right. The disclosure sought for protecting a right shall not be excessive and shall be proportionate to the remedy necessary to deal with the infringement. Further, in court’s opinion the Copyright Act 1957, sufficed all the requirements which were needed to make the defendants liable to disclose the identities of the individuals involved [p. 45(xi) to 45(xv)].
The court finally directed Telegram to disclose all the details including mobile numbers, IP addresses, email addresses, etc. of the channels/devices which were involved in spread of the infringing content to the court in a sealed cover [p. 48].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The court’s decision paves a strong way towards the protection of the intellectual property rights of an individual in an ever-changing technological world which poses sufficient challenges before the authorities responsible for protection of rights and enforcement of liabilities. The court’s direction that an individual cannot claim protection of privacy and speech in a digital regime when they are involved in an illegal act is a suitable manifestation of the law long prevailing in the sphere which is not completely based on digital technology, to the sphere of law which is to a major extent, totally dependent upon digital technology.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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