In the latest Judgment in Neetu Singh & Anr. v. Telegram FZ LLC & Ors., CS (Comm) 282 of 2020,
The Plaintiff No. 1 is a reputed author of books which are designed to train students aspiring to different competitive examinations such as Staff Selection Commission (SSC), Bank Probationary Officer (PO), CDS, NDA, etc.
The Defendant No. 1, Telegram, is a messaging platform capable of being downloaded on mobile phones, computer, tabs and other similar gadgets, which enables transmission of text, audio files, video files, images, documents, etc.
In the suit, the Plaintiffs’ allegation is that its copyrighted works including course materials, online lectures and other works are being disseminated unauthorizedly through various Telegram channels. Although, upon receipt of the take down notice (s), Telegram took down the impugned channels; however, some infringing channels continued to exist and new channels came up on a daily basis.
In an ad-interim order dated 28 July 2020 followed by a modified order on 23 September 2020; Telegram was directed to take down all the impugned channels as highlighted by the Plaintiffs’.
However, being still aggrieved, the Plaintiffs’’ filed an Interlocutory Application being I.A. No. 8461/2020 (“IA”) wherein the Plaintiff sought discovery of the details of the persons who are operating the impugned channels for effective remedy.
1) Whether the Delhi High Court has jurisdiction even if Telegram’s server are located in Singapore?
2) Whether through this IA, Telegram can be directed to disclose the identity of the creators of the impugned channels who are unauthorizedly and illegally disseminating the Plaintiffs’ copyrighted works?
Plaintiffs’ Brief Submissions/Arguments
· Although, the impugned channels were taken down based on ad-interim order; new channels are mushrooming by making minor modification (prefix/suffix); hence, the details of the persons operating the impugned channels is significant to avail remedies.
Telegram’s Brief Submission/Arguments
· Take down of impugned channels upon receipt of the information/details from the Plaintiffs’ is sufficient to protect the interests of the Plaintiffs’.
· Right to privacy (Article 21 of the Constitution of India)
· Telegram is an intermediary as per the Information Technology Intermediary Guidelines and Digital Media Ethics, 2021 (the “IT Guidelines”); Further, sharing of the required information shall be violating the contract between Telegram and the subscriber and would constitute offence under Section 72A of the Information Technology Act, 2000.
· Telegram’s server based out of Singapore and as per the provisions of Singapore Personal Data Protection Act, 2012 – information can only be revealed upon direction of a court based out of Singapore and not otherwise.
The Delhi High Court’s key observations
The Delhi High Court through Justice Prathiba M. Singh has made the following observations:
On the Jurisdiction
· The copyrighted materials is in relation to Indian examination materials and in all likelihood the source of the impugned channels as well as the circulating devices are located in India.
· Cloud computing being the general norm these days, even if the data is stored in a physical structure outside India, it is accessible to the company in other jurisdictions including from India. Hence, the data is accessible across different jurisdictions and the conventional concept of territoriality no longer exist.
· Doctrine of reciprocity as Singapore is a signatory to Berne Convention as well as is WTO member.
· The High Courts are vested with inherent powers to enable themselves to maintain their dignity and secure obedience to their process and rules in order to give effective relief. Moreover, Telegram runs its massive operations in India and the infringers cannot be permitted to seek shelter under Telegram’s policies merely on the ground that its physical server is in Singapore.
On Copyright infringement and disclosure of identity of infringing channels
· The unauthorized and illegal circulation of the Plaintiffs’ literary and cinematographic works amounts to copyright infringement. Further, 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. The propensity of infringers to conceal and hide is the very reason due to which the provisions of law are widely worded.
· The grant of injunction per se in the absence of commensurate damages or monetary deterrents, would be a toothless relief. Such orders do not constrain the infringers from simply creating new infringing channels and even profit off of their infringement, till the time the Plaintiff is able to seek an injunction for every new channel.
· The broadly worded provisions of the Copyright Act indicate a conscious legislative mandate to eliminate undue and continuous harassment of Plaintiffs in such situations where they have to repeatedly seek blocking orders against infringing channels. Hence, 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.
· ‘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. The protection of the same is integral to the public policy behind the legislation as well. The legislative intention to prevent such continued infringement and effectively implement the provisions of the Copyright Act would be frustrated by any interpretation to the contrary.
· The provisions of the Information Technology Act, 2000 and the allied Rules made therein have to be construed harmoniously with the rights and remedies provided to the copyright owners under the Copyright Act, 1957.
· Hence, Telegram is directed to disclose the details of the channels/devices used in disseminating the infringing content, 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 IA within two (2) weeks from the order’s date (30 August 2022).