IPRMENTLAW WEEKLY HIGHLIGHTS (JUNE 14-20)

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1.MADRAS HC QUASHES CRIMINAL CASE AGAINST ACTOR AND POLITICIAN KAMAL HAASAN FOR COMMENTS ON ‘MAHABHARATHA’ 

The Madurai Bench of the Madras High Court last month quashed a criminal case filed against Kamal Haasan for his comments in an interview in March 2017, where he had attributed the growing violence against women in the country in part to the societal reverence of the Mahabharatha, which depicts a woman being used as collateral during gambling. The complainant had alleged that Haasan’s comments offended his personal religious sentiments and amounted to an offence punishable under Section 298 of the Indian Penal Code, 1860. However, Hon’ble Mr. Justice G. Ilangovan noted that the impugned comments had been made without the requisite intention to hurt religious sentiments and cannot accordingly fall foul of Section 298. Further, it was observed that “criticism is not only the human right, but also democratic right upon which the democracy thrives and society evolves to a new desired polity.” In light of these observations, the complaint filed against Haasan was quashed.

The order of the Madras High Court is available here.

2. INDUSTRY GROUPINGS SEEK REMOVAL OF PERSONAL LIABILITY PROVISION IN THE NEW IT RULES 

Multiple industry groupings, including the Internet and Mobile Association of India (“IAMAI”), the Confederation of Indian Industry (“CII”) and the Federation of Indian Chambers of Commerce and Industry (“FICCI”), have made representations to the Ministry of Electronics and Information Technology (“MeitY”) seeking removal of the provision imputing liability upon the Chief Compliance Officer of intermediaries, as per the new rules promulgated under the Information Technology Act, 2000. It has been asserted by these industry groupings that the impugned provision is disproportionate and counter-intuitive given that recent changes in the corporate law framework in India have replaced criminal liability with monetary fines in an aim to improve ease of doing business. Separately, these associations have also requested that only a few central government agencies be authorised and empowered to mandate takedown of content or to seek specific information from social media companies / platforms.

3. SONY PICTURES NETWORK INDIA SECURES DYNAMIC JOHN DOE INJUNCTION TO PROTECT ITS EXCLUSIVE MEDIA RIGHTS IN INDIA’s UPCOMING CRICKET SERIES 

Earlier this month, Sony Pictures Network India (“Sony”) secured a dynamic injunction for blocking of certain identified rogue websites and John Doe / Ashok Kumar defendants whose information will be provided for blocking as and when identified by Sony. The order of the Delhi High Court applies to websites / URLs streaming, reproducing and making available to the public the India – Sri Lanka international series in July 2021 and the India – England international series in August and September 2021 (both pertaining to international men’s cricket). The suit also impleaded certain Internet Service Providers and statutory bodies to assist with the implementation of the court’s order directing blocking of such rogue websites that illegally stream / provide access to the aforementioned sporting events. Sony had obtained exclusive media rights from the cricketing boards of England and Sri Lanka for the broadcast of these sporting events in India and this order of the Delhi High Court shall help ensure that its rights in these events are not contravened by rogue third-party websites. Intriguingly, the Court also appointed two Local Commissioners to monitor any unauthorized distribution or transmission of said sporting events by Multi-System Operators and Local Cable Operators.

The order of the Delhi High Court is available here.

4. OBJECTIONABLE POSTS IN RELATION TO GODS AND GODDESSES

In a case filed by Petitioner Aditya Singh Deshwal before the Delhi High Court, pleading against certain users of Instagram uploading allegedly objectionable content, a single bench of the Delhi High Court has issued notice. The subject matter of this petition involved content that contained abusive language as also vulgar representations of Gods and Goddesses in the form of cartoons and graphics. Instagram, which appeared on advance notice, pleaded that the aforementioned content was already taken down by the said platform. A few interesting pleas concerned with the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, were raised by the counsel for the Petitioner, who asserted that Instagram ought to be directed to comply with the said rules in letter and spirit. There was also a pleading to the effect that Instagram and Facebook cannot, in the spirit of the Rules be allowed to have a common Grievance Officer (being a Significant Social Media intermediary under the definition in the Rules). There could be a clear conflict in this case as to the idea of Freedom of Expression and maintenance of public morality, under Article 19(2) of the Constitution. Hence, notice was issued to the Government of India as well. The case has been further listed on 16th August 2021.

The order of the court can be found here.

Note: These new IT Rules have been challenged before the Delhi HC and is pending.

5. BAIL GRANTED BY THE PATNA HIGH COURT IN A SIMILAR OBJECTIONABLE RELIGIOUS CONTENT PLEA 

In Jawed Akhtar v. State of Bihar, the Patna High Court was dealing with a case of a student who was arrested for uploading allegedly objectionable post about Hindu Gids on social media. The student was charged under Section 153(A) (promoting enmity on the basis of religion or race), Section 294  (obscenity) of the IPC and sections 67 and 67 (A) of the IT Act. The Bail plea was primarily on the ground of the Petitioner having spent considerable amount of time i.e. almost 10 months in Judicial Custody, and him merely being a student. The Bail Order can be accessed here.

6. PUBLIC COMMENTS HAVE BEEN SOUGHT ON THE PROPOSED AMENDMENTS TO THE CINEMATOGRAPH ACT

The Cinematograph (Amendment) Bill, 2019, which was tabled to tackle the so-called “menace” of film piracy in the Rajya Sabha, has, after revisions and recommendations suggested by the Standing Committee on Information Technology, been suitably amended and revamped. The new bill called the The Cinematograph (Amendment) Bill, 2021, seeks to make the process of sanctioning of films for exhibition more effective, in tune with the changed times and to curb the menace of piracy. As per the Document released by the Ministry of Information and Broadcasting, dated 18th June 2021, the proposed changes are:

a) Amendment of certification categories into further sub divided categories U/A 7+, U/A 13+ and U/A 16+. Amendment of the following provisions:

(i) proviso to clause (i) of sub-section (1) of section 4 – Examination of films

(ii) clause (a) of sub-section (1) of section 5A – Certification of films

(iii) clause (b) of sub-section (2) of section 6 – Revisional powers of the Central Government

(b) Amendment of sub-section (3) of section 5A regarding ‘Validity of certificate’– Removal of validity of the certificate issued by the board for only 10 years.

(c) Amendment of sub-section(1) of section 6 regarding ‘Revisional powers of the Central Government’: inclusion of a proviso providing the government specific revisionary powers on the violation of section 5B(1) of the Act, justified under the requirements of “decency” backed by article 19(2) of the Constitution. The government can, under the same, upon it deeming fit, ask the author to re-examine the content.

(d) Film Piracy curbing amendments- Insertion of section 6AA which provides a remedy for copying or reproducing the recordings of a film or part thereof. The protection is against making, transmitting and abetting the making or transmission of an unauthorized copy of the film.

Further Section 7(IA) has been inserted to criminalized and penalized this act, by providing for imprisonment and a fine to the extent of Rs. 5 Lakhs or 5% of the audited gross production cost. The exceptions to copyright infringement under section 52 of the Act has been extended to this provision.

Comments have been sought on this Draft Bill from the public by 2nd July, in the form of an email on dhanpreet.kaur@ips.gov.in. The call can be accessed here.

  1. TWITTER AND ITS INTERMEDIARY FIASCO

The mainstream media in India has  been reporting that Twitter has “lost” its intermediary status under Section 79 and other provisions of the of the IT Act. (See here) due to non compliance with the new IT Rules, 2021 (which as mentioned above has been challenged before the Delhi HC). This was triggered by a tweet by the Minister of IT, Ravi Shankar Prasad, who tweeted that Twitter failed to comply with the new Guidelines and may now face criminal liability for the material of third party on its platform. There is also a case filed by the UP Govt. against Twitter (a late night FIR) which is doing the rounds. The comment and the tweet has arisen by the law/ IT minister on the ground of Rule 7 of the new IT Rules, which provides that the intermediary could lose the protection under section 79(1) of the IT Act, if compliance with the rules is not established. However, the intermediary status is a statutory right, and cannot be taken away by the executive, or by an executive order, unless the judiciary so determines.

(These highlights have been contributed by Akshat Agrawal and Angad Makkar)

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