TELEGRAM TROUBLE

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I. INTRODUCTION

Newspapers are a daily source of information and entertainment that had ceased physical distribution in many parts of the country amidst the lockdown. However, many publications conquered this adversity by making available their publications digitally.

M/s. Jagran Prakash Ltd. (“Plaintiff”) is the owner of physically distributed newspaper Dainik Jagran, which is now also made available to its readers on its website. However, the same cannot be downloaded for circulation. It was recently brought to the Plaintiff’s attention that their newspaper was being illegally circulated using Telegram Channels thereby causing financial loss, violating their trademark and copyrights and filing of the present case.

II. FACTS OF THE CASE

  1. The Dainik Jagran website has a security feature that disallows readers to download the newspaper.
  2. Jagran Prakash Ltd. is the exclusive owners of the trademark ‘Dainik Jagran’ with its variations registered in number of classes.
  3. Telegram FZ LLC (“Defendant”) thorough its application Telegram allows its users to create channels and share files, in the present case the files being illegally downloaded current edition PDF copies of the Plaintiff’s e-paper and also allowing users to download all the previous edition of the e-paper, which otherwise was only available to a user only if he subscribes the e-paper.
  4. Plaintiff had issued notices dated (a) 9th April, 2020, (b) 16th April, 2020, (c) 30th April, 2020 and (d) 1st May, 2020, on the Defendant, to which there was no reply.
  5. Plaintiff served a copy of the plaint and documents on the Defendant on 23rd May, 2020 and thereafter received a reply dated 25th May, 2020 from the Defendant stating that channels had been blocked.
  6. The Plaintiff had placed on record a screenshot of 28th May, 2020, whereby the said channels were not only accessible but had also grown in numbers.

III. ARGUMENTS RAISED

  1. Plaintiff relied on Section 79 of the Information Technology Act and submitted that the Defendant could not escape from its liability under the guise of being an intermediary for the Defendant was required to conduct due diligence in terms of Rule 3 sub-rule 4 of the Information Technology (Intermediaries Guidelines) Rules, 2011 on being informed about the misuse, the Defendant is required to pull down the said channels within 36 hours.
  2. However, despite repeated reminders the said channels had not been pulled down and the reply of the Defendant received on 25th May, 2020, that the channel had been blocked was also incorrect in view of the screenshot of the channel dated 28th May, 2020.

IV. COURT RULING

The Court held that balance of convenience was in favour of the Plaintiff and that the Plaintiff had made out a prima facie case thereby granting an ad-interim injunction in favour of the Plaintiff.

The Court has directed the Defendant to disclose the basic information of subscribers of the channels and has directed the Defendant to take down/ block the channels within 48 hours of the receipt of the order.

V. CONCLUSION

Telegram has been in the news and widely discussed in the media and entertainment industry for anonymous piracy and the recent rulings are a good first steps, however, not adequate.

Read the order here.

VI. MORE ON TELEGRAM

We did some homework around Telegram in the news and on its website and shared some findings hereunder –

  1. Kerala High Court seeks Centre’s views on plea to ban Telegram app.

Solomon’s plea terms Telegram as being distinct from other social media platforms such as WhatsApp, Twitter, Facebook and Instagram, in the degree of anonymity that a user enjoys.

While the Information Technology Act, 2000 mandates removal of content on the directions of authorities, Telegram does not have a nodal officer or a registered office in India, the petitioner said. Therefore, it is not possible to enforce intermediary liability on Telegram, she said.

  1. Telegram Policies

a) Who your Personal Data may be shared with?

If Telegram receives a court order that confirms you’re a terror suspect, we may disclose your IP address and phone number to the relevant authorities. So far, this has never happened. When it does, we will include it in a semiannual transparency report published at: https://t.me/transparency.

b) There’s illegal content on Telegram. How do I take it down?

All Telegram chats and group chats are private amongst their participants. We do not process any requests related to them.

 But sticker setschannels, and bots on Telegram are publicly available. If you find sticker sets or bots on Telegram that you think are illegal, please ping us at abuse@telegram.org.

 You can also use the ‘report’ buttons right inside our apps, see this post on our official @ISISwatch channel for details.

c) A bot or channel is infringing my copyright. What do I do?

All Telegram chats and group chats are private amongst their participants. We do not process any requests related to them. But sticker setschannels, and bots on Telegram are publicly available.

If you see a bot, channel, or sticker set that is infringing on your copyright, kindly submit a complaint to dmca@telegram.org. Please note that such requests should only be submitted by the copyright owner or an agent authorized to act on the owner’s behalf.

d) Wait! 0_o Do you process take-down requests from third parties?

Our mission is to provide a secure means of communication that works everywhere on the planet. To do this in the places where it is most needed (and to continue distributing Telegram through the App Store and Google Play), we have to process legitimate requests to take down illegal public content (e.g., sticker sets, bots, and channels) within the app. For example, we can take down sticker sets that violate intellectual property rights or porn bots.

User-uploaded stickers sets, channels, and bots by third-party developers are not part of the core Telegram UI. Whenever we receive a complaint at abuse@telegram.org or dmca@telegram.org regarding the legality of public content, we perform the necessary legal checks and take it down when deemed appropriate.

Please note that this does not apply to local restrictions on freedom of speech. For example, if criticizing the government is illegal in some country, Telegram won‘t be a part of such politically motivated censorship. This goes against our founders’ principles. While we do block terrorist (e.g. ISIS-related) bots and channels, we will not block anybody who peacefully expresses alternative opinions.

e) Do you process data requests?

Secret chats use end-to-end encryption, thanks to which we don’t have any data to disclose.

To protect the data that is not covered by end-to-end encryption, Telegram uses a distributed infrastructure. Cloud chat data is stored in multiple data centers around the globe that are controlled by different legal entities spread across different jurisdictions. The relevant decryption keys are split into parts and are never kept in the same place as the data they protect. As a result, several court orders from different jurisdictions are required to force us to give up any data.

 Thanks to this structure, we can ensure that no single government or block of like-minded countries can intrude on people’s privacy and freedom of expression. Telegram can be forced to give up data only if an issue is grave and universal enough to pass the scrutiny of several different legal systems around the world.

To this day, we have disclosed 0 bytes of user data to third parties, including governments.

VII. RELATED NEWS

  1. WhatsApp to Madras HC: Impossible to track the sender of a message because of encryption.

Even WhatsApp does not have the decryption key for these messages, and thus cannot access their content, they said. It only has access to basic subscriber information – that is, who has registered to use the app. To discern the sender of any message, every message on WhatsApp will have to be recorded in a decrypted manner, thereby providing backdoor access to all WhatsApp communication, which in turn undermines WhatsApp’s basic promise of privacy through encryption.

  1. Facebook Inc vs. Union of India

The Hon’ble Supreme Court in this case had touched upon the requirement and reality of intermediaries.

We must also highlight that de-encryption, if available easily, could defeat the fundamental right of privacy and de- encryption of messages may be done under special circumstances but it must be ensured that the privacy of an individual is not invaded. However, at the same time, the sovereignty of the State and the dignity and reputation of an individual are required to be protected. For purposes of detection, prevention and investigation of certain criminal activities it may be necessary to obtain such information. De-encryption and revelation of the identity of the originator may also be necessary in certain other cases, some of which have been highlighted hereinabove.

 We find that the law in this regard is still at a nascent stage and technology keeps changing every day, if not every hour. There are various creases which need to be ironed out. Though, the guidelines provided that the intermediaries should furnish the information, it is not clear how the intermediaries who are based abroad and do not even have grievance officer posted in the country, would be compelled to reveal this information.

  1. ‘Bois Locker Room’ : Delhi Commission For Women Takes Suo Moto Notice; Writes To Instagram, Delhi Police

We access, preserve and share your information with regulators, law enforcement or others:

  • In response to a legal request (like a search warrant, court order or subpoena) if we have a good faith belief that the law requires us to do so. This may include responding to legal requests from jurisdictions outside of the United States when we have a good-faith belief that the response is required by law in that jurisdiction, affects users in that jurisdiction, and is consistent with internationally recognized standards.
  • When we have a good-faith belief it is necessary to: detect, prevent and address fraud, unauthorized use of the Products, violations of our terms or policies, or other harmful or illegal activity; to protect ourselves (including our rights, property or Products), you or others, including as part of investigations or regulatory inquiries; or to prevent death or imminent bodily harm. For example, if relevant, we provide information to and receive information from third-party partners about the reliability of your account to prevent fraud, abuse and other harmful activity on and off our Products.

Information we receive about you (including financial transaction data related to purchases made with Facebook) can be accessed and preserved for an extended period when it is the subject of a legal request or obligation, governmental investigation, or investigations of possible violations of our terms or policies, or otherwise to prevent harm. We also retain information from accounts disabled for terms violations for at least a year to prevent repeat abuse or other term violations.

Read more on Instagram’s website here and here.

  1. The Information Technology [Intermediary Guidelines (Amendment) Rule] 2018
  1. Russia to block Telegram app over encryption

Image from here

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