Wishing all our readers a very Happy New Year. This January 2022, IPRMENTLAW completes its fourth year. We would like to thank all our readers for being a part of this amazing journey with us. Keeping our tradition, we bring to you our annual media and entertainment law highlights of 2021. These highlights have been compiled by team IPRMENTLAW (Sudarshan Mohta, Akshat Agrawal, Angad Makkar, Lokesh Vyas, Aviral Srivastava, Ujjawal Bharagava, Vanshika Arora and edited by Anushree Rauta)
For ease of reference, we have divided the updates topic wise viz:
- Intermediary Liability
- Hurting religious and other sentiment
- Content Regulation
- Privacy and Personality Rights
- Sports and Gaming
Delhi High Court Refused To Stay Release Of Netflix Film ‘The White Tiger’ On Plea Of Copyright Violation
The Delhi High Court refused to stay release of film “The White Tiger” on OTT platform Netflix, while hearing a last-minute plea filed by American Hollywood producer John Hart Jr alleging copyright violation. The film ‘The White Tiger’ is based on the book ‘The White Tiger’, authored by Aravinda Adiga, which was published in March 2008. While Hart claimed that he had “won” the right to make a movie adaptation of the book “The White Tiger” in March 2009 and that that there was a “Literary agreement” between him and the author, Aravind Adiga, to make a movie adaptation out of the award-winning book. After hearing the counsel, the Court opined that no case for the grant of last-minute stay was made out.
Radio Broadcasters Challenge IPAB Decision On Statutory Licensing Qua Underlying Works
Radio broadcasters filed an appeal challenging the IPAB decision qua underlying works. While hearing the appeal, Justice Manmohan had to recuse himself from hearing the matter.
Accordingly, he observed that when his bench was hearing the appeal filed by IPRS v. ENIL against Justice Endlaw’s order, it had directed that the judgment of the learned Single Judge shall not be relied upon or used as a precedent as it was of the opinion that the issue in question required consideration by a Division Bench. On parity of reasoning, a similar order would have been called for in the present batch of matters. The appeals are pending before the division bench of the Delhi High Court.
Read order here.
Sony Music Gets Ad-Interim Relief From Bombay High Court Against KAL Radio Over Copyright Infringement And Violation Of Statutory Licensing Provisions
In a copyright infringement suit filed by Sony Music, Bombay High Court granted an ad-interim injunction in favour of Sony Music against KAL Radio Limited thereby restraining them from broadcasting / communicating the copyrighted works of Sony Music (Indian and International repertoire) on its FM radio stations, without complying the provisions of Section 31D of the Copyright Act and the Rules framed thereunder.
‘Court Cannot Rewrite Statutory Language’: Supreme Court Sets Aside Madras HC Order Reading Down Advance Notice Condition for Broadcasters Under Rule 29(4) of Copyright Rules
The Supreme Court set aside an interim order passed by the Madras High Court in a writ petition filed by some broadcasters/FM Radios challenging Rule 29(4) of Copyright Rules, 2013.
The Bench of Justice DY Chandrachud and BV Nagarathna observed in the case Saregama India Limited vs. Next Radio Limited & Ors. case that Craftsmanship on the judicial side cannot transgress into the legislative domain by re-writing the words of a statute. For then, the judicial craft enters the forbidden domain of a legislative draft.
Before the Madras High Court, the validity of Rule 29(4) was challenged by certain broadcasters/ FM Radio on the ground that it violates Article 19(1)(a) of the Constitution and that it is ultra vires Section 31D of the Act. The High Court, in its interim order observed that the duty which is cast on broadcasters in the notice to broadcast under Rule 29(1) is apparently onerous.
In lieu of the same, the High Court had issued the following directions that no copyrighted work can be broadcast in terms of Rule 29 without issuing a prior notice and that details pertaining to the broadcast, particularly the duration, time slots and the like, including the quantum of royalty payable may be furnished within fifteen days of the broadcast or performance.
Before the Apex Court, challenging this interim order, it was contended that the interim order amounts to re-writing Rule 29(4) of the Rules framed in pursuance of the provisions of Section 31D and Section 78(2)(CD) of the Copyright Act 1957. The court noted that the High Court has substituted the provisions of Rule 29(4) with a regime of its own, which is made applicable to the broadcasters and the petitioners before it.
Read order here.
Delhi high court rules in favour of T Series & Saregama in copyright infringement case against radio broadcasters for violation of Rule 29 of Copyright Rules
T Series and Saregama had filed independent copyright infringement suits against several radio broadcasters for violating the provisions under Rule 29 of the Copyright Rules, 2013 while invoking their statutory license in furtherance of the IPAB judgement dated 31st December 2020. The Delhi High Court vide its order dated 9th November, 2021 ruled in favour of the plaintiff music labels and restrained the defendant radio broadcasters from broadcasting/communicating to the public and/or otherwise exploiting the plaintiffs’ copyright works through the defendant‘s FM Radio channels/stations without complying with Rule 29, especially, with Rule 29(4)(i)(j) and (k) of the Copyright Rules, 2013. Read judgement here.
Copyright Act: ‘Business Of Issuing Licenses Can Be Routed Only Through Copyright Societies U/S 33’; Madras HC Dismisses Suits Filed For Violation Of Licensing Rights
The Madras High Court in the case of Novex Communications Pvt. Ltd v. DXC Technology Pvt. Ltd & Anr has held that the business of issuing licenses in any work in which copyright subsists can only be done by a registered copyright society if the work is incorporated in a cinematograph film or a sound recording.
It held that though an owner need not necessarily join a copyright society, the first proviso to Section 33 makes it clear that the right of an owner to issue licenses, in his individual capacity, remains unimpacted, subject to the rider that such a right must be consistent with his obligations as a member of any copyright society. However, once the grant of license moves from the owner in his individual capacity, and transcends into the realm of a business, Section 33(1) and/or the second proviso applies. The legislative intent is manifestly clear that the business of licensing must be routed only through a copyright society.
Disagreeing with the judgment in Novex Communications Private Limited v. Lemon Tree Hotels Limited (2019), the court clarified that the decision of Delhi High Court was not in consonance with the legislative history behind the Amendment Act of 2012. The Delhi High Court had held that copyright societies would have exclusive right to grant licenses only when an exclusive authorisation to that effect is obtained from the owners under Section 34 (1) (a). The Madras High Court, on that aspect, reiterated that the first proviso to Section 33 operates only-qua an issuance of a license by an owner, in his individual capacity. If the entity involved is in the business of issuing licenses, like the plaintiff in these cases, it would fall within the net of the second proviso if the work is incorporated into a cinematograph film or a sound recording.
Read Order here.
Read our Article analysing the judgement here.
Delhi High Court Invites Suggestions For Fixing Royalties For Sound Recording & underlying works
The High Court of Delhi issued a public notice on 10th November, 2021, with respect to the intention of the IP Division to fix/revise radio royalties as mandated under Section 31D of the Copyright Act, 1957. Two public notices have been issued, one for communication of sound recording to the public through radio broadcast and another for communication of underlying works in sound recordings.
The notice invites suggestions from interested persons, in writing along with necessary evidence.
Bombay High Court Says Non-IPC Offences Punishable With “Up To Three Years”, Will Be Categorised As Cognisable And Non-Bailable.
While hearing a case under the Copyright Act, 1957 and Trademarks Act, 1999 and other IPC sections, Justice Sarang Kotwal held, “Bare reading of this Part II of the Schedule -I of CrPC shows that, if the offences in the other laws are punishable with imprisonment for three years and upwards then the offences are cognizable and non bailable. Wherever it is possible to impose the punishment extending to three years, this category would apply, because in such offences it is possible to impose sentence of exact three years. In such cases offences would be non-bailable.” The case was pertaining to the anticipatory bail filed by a Piyush Ranipa, who apprehended arrest in a case pertaining mainly to copyright infringement and faking of trademark of the complainant company.
Read our analysis of the judgement here.
Bombay High Court rules that Registration of Copyright is not mandatory for seeking protection under the Copyright Act
Justice GS Patel of the Bombay High Court held that “Copyright Act gives a range of rights and privileges to the first owner of copyright without requiring prior registration”.
Further while emphasizing on Section 51 of the Copyright Act, he said that Section 51 talks about infringement of Copyright, however, it does not restrict itself to works that have been registered with the Registrar of Copyright. He further observed that “This section does not, per se, demand prior registration. It does not say so anywhere; and this has to be read with Section 45(1), which says that the owner of copyright may apply for registration. Importantly, copyright infringement lies in the unlicensed use of original works, in which the author has a spectrum of exclusive rights.”
Radhe Piracy Case
Zee procured an ex-parte order from Delhi High Court against pirated copies of the film Radhe circulated on WhatsApp. The Court directed WhatsApp to forthwith suspend the WhatsApp accounts of certain defendants to ensure that the said Defendants cease the infringement of the Zee’s copyright on WhatsApp. The court further directed that in the event the Plaintiff brings to the notice of WhatsApp that any other WhatsApp account is being used for the purpose of selling infringing copies of the film, WhatsApp shall as expeditiously as possible, and not later than 24 hours from the receipt of the request from the Plaintiff, suspend such accounts.
Meanwhile, in the complaint filed by Zee before the Cyber Police, FIR has been registered against three individual users of WhatsApp and Facebook in connection with a pirated version of the film being leaked on social media hours after its release.
Zee had earlier procured a John Doe order from Madras High Court to curb the film’s piracy.
Read order here.
SVF Entertainment Pvt. Ltd procured injunction against Venus Worldwide in a copyright infringement matter
SVF Entertainment Pvt. Ltd procured an injunction against Venus Worldwide Entertainment Pvt. Ltd from commercial court at Alipore. The defendant had produced a Bengali film “Dada Thakur” which was released on 14.12.2001 and similarly another cinematographic film namely “Pratibad” which was released on 13.04.2001. By an agreement dated 04.01.2019, the defendant assigned the entire copyright in about 52 films including the aforementioned films to the Plaintiff. Thereafter the plaintiff granted audio distribution rights to audio songs of the said films to the Defendant, which agreements expired by efflux of time and thereby the Defendant did not have any subsisting right in the said films. The Court took into account the submission advanced by the Plaintiff on its right being established in the two films and found the balance of convenience in its favour. Accordingly, the defendant was restrained from exploiting the songs of the two films.
(Read order here)
Delhi High Court Restrains WhatsApp, Telegram From Sharing E-Paper Of Toi And Navbharat Times
The Delhi High Court passed an interim order restraining WhatsApp and Telegram and certain individuals from illegally circulating e-papers of Bennett, Coleman and Company Ltd on their platform.
Justice Jayant Nath observed that prima facie the act of illegally circulating the e-papers of plaintiff on the defendants’ platforms is violative of its copyright and accordingly granted ad-interim injunction in favour of Bennett, Coleman and Company Ltd.
Viacom 18 Moves Bombay High Court Against Panorama Studios Over Drishyam 2
Viacom 18 Media Pvt. Ltd. moved the Bombay High Court seeking to restrain Panorama Studios International Ltd. and Panorama Studios Pvt Ltd from producing any sequel to the ‘Drishyam franchise’ in Hindi language on the ground that it infringes their copyright.
The Bombay High Court recorded the undertaking of Panorama that they will not begin shooting of the film till the next date of hearing of Viacom’s application. It also recorded that if any preparatory work, such as developing a script, screenplay or dialogue is undertaken, then this will be at their own risk, and that they will not be entitled to claim any equities on that basis under any circumstances whatsoever.
Read order here.
Sony Pictures Network India Secured Dynamic John Doe Injunction To Protect Its Exclusive Media Rights In India’s Cricket Series
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 was applied 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 helped 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.
Further, the Delhi High Court in Sony Pictures Network India v. www.sportsala.tv & Ors restrained 50 Defendants from hosting, streamlining, reproducing, distributing, making available to the public and/or communicating to the public or facilitating the same on their websites through the internet in any manner whatsoever, any cinematograph work, content, programme and show or event broadcasted on the plaintiffs’ channels (i.e. Sony Pictures Network India) in which they have copyright.
The order of the Delhi High Court is available here.
Broadcasters Chase Pirates as Signal Goes High-Tech
Indian broadcasters are chasing pirates as illegal streaming devices and signal theft eat into revenues, especially of big-hit shows such as live sports. Star India had also filed a case against Android software aggregator Thop TV right before the ICC World Test Championship Final.
Much more than 400 Indian channels were streamed illegally globally, with no shelling out any expenses to Indian broadcasters. The covid-19 pandemic had observed a sharp rise in the buyer foundation for this unlawful material.
Current legal guidelines on broadcasting and distribution of satellite TV channels do not have any provision which prohibits the sale and use of Kodi packing containers (a term for illicit WiFi kind of packing containers).
Their brands and sellers are not required to get hold of any license or certificate from the ministry of information and broadcasting. In addition, makers of these packing containers are situated in non- compliant jurisdictions.
Allahabad High Court refused to stay the release of the film ‘Chehre’
The Allahabad High Court refused to stay the release of the Amitabh Bachchan starrer film ‘Chehre’ in an appeal filed by Writer Uday Prakash alleging copyright infringement. Justice JJ Munir refused to grant any interim relief against the order passed by the District Judge.
The Court compared the two scripts and opined that although the principle theme was common, there were a host of differences in the script leading to the feature film.
Read order here
Fresh Section 31D petition filed by ENIL and other radio broadcasters in the Delhi High Court
Entertainment Network India Ltd and other radio broadcasters filed a petition under section 31D of the Copyright Act, 1957, for broadcast of the sound recordings owned and/ or exclusively controlled by the respondents herein via the petitioner’s radio stations. They have sought for revision of radio license fee rates as set out in the IPAB order of 31st December, 2020.
Further, ENIL has also filed a compulsory licensing application against Tips Industries Limited before Delhi High Court for seeking license in relation to its web radio.
Bolo Indya, The Social Media App, Removed From The Google Playstore On A Copyright Complaint Made By Music Label T-Series
Google temporarily removed home-grown social media app Bolo Indya from Playstore following a copyright complaint made by music giant T-Series. As per report, the live-streaming platform had around 70 lakh users. In September 2020, the music label had served copyright infringement notice to social media and video sharing platforms, claiming damages of Rs 3.5 crore. It had also asked the platform to render accounts of all revenues illegally earned by the platform from the copyrighted content. In furtherance to this, Bolo Indya spokesperson stated they are in talks with T Series and Google to resolve the issue at the earliest and the platform will be back on Play Store shortly. We assure that users that all their created content and transaction details for in-app currency purchases are safe and Bolo Indya will be back soon on Play Store for them to continue having their friends download the app from Play Store to enjoy the new features.
Madras High Court settled that the Film Producer is the sole owner of copyright in the film and mere credits to author do not amount to acknowledgement of authors copyright
The Madras High Court has held that mere giving of credit to the author for screenplay and dialogues by the producer would not amount to acknowledgement of the author’s copyright. This ruling came in a copyright dispute on the assignment of remake rights of a film where the director of the film sought for copyright as the credit of story, screenplay and dialogue was given to him.
The Court clarified that credit for a work and copyright are two completely different things. Ordinarily, only the producer is entitled to hold copyright in a cinematograph film. In case the copyright is retained by someone else, it becomes pertinent to show the relevant documents in favour of the other person.
The present case dealt with a challenge against the refusal of Trial Court to grant an injunction for copyright infringement against the producer and Fakrudeen Ali who has brought the remake rights of the film, “Vaalee”.
The judgement of the case can be found here.
Bombay High Court reiterates that there is no copyright in an idea (Tarun Wadhwa v. Saregama India Ltd & Anr)
An independent filmmaker Tarun Wadhwa filed a copyright infringement suit before the Bombay High Court claiming that Saregama had used his material illicitly to make a Marathi film on Zombies called Zombivli. The Bombay High Court, however, refused to restrain the release of the said film reiterating the well settled principle of there being no copyright in an idea.
Read order here.
Recorded Music Performance Limited Receives Registration As A Copyright Society For Sound Recordings
The Department for Promotion of Industry and Internal Trade (DPIIT) under the aegis of Ministry of Commerce & Industry has granted certificate of registration to Recorded Music Performance Limited (RMPL) under Section 33(3) of the Copyright Act, 1957 and permitted it to commence and carry on the copyright business in sound recording works. The Recorded Music Performance Ltd. (RMPL) owns, as assignee, and exclusively controls public performance rights and radio broadcasting rights (sound recordings) of few companies, including both non-film and film songs of its members, who are music labels.
PPL Moves Delhi High Court Against Government Order That Rejected Its Re- Registration Application
Phonographic Performance Limited (PPL) moved Delhi High Court against an order passed by the Government, rejecting PPL’s application for re-registration as a copyright society under Rule 47 of the Copyright Rules, 2013. The government claimed that the application was belated and therefore PPL could not be granted re-registration. However, the Court passed an ad interim order directing the application to be considered on its own merits. The court also clarified that the government shall not take any action inconsistent with the present position during its pendency.
Kangana Ranaut Moves Bombay HC Against FIR On Copyright Violation
An FIR was filed by Ashish Kaul, author of ‘Didda: The Warrior Queen of Kashmir’ for an alleged copyright violation and cheating against Actor Kangana Ranaut, as She had tweeted about her next production, ‘Manikarnika Returns: The Legend Of Didda’, based on the story of the Queen of Kashmir who defeated Mehmood Ghaznavi twice. The FIR was filed under IPC sections for cheating, criminal breach of trust and conspiracy and also the Copyright Act, following an order passed by a Magistrate’s court on an application filed by author. Actor Kangana Ranaut and her brother Akshat Ranaut have approached the Bombay High Court challenging an FIR lodged against them by Mumbai Police for alleged copyright infringement and cheating in connection with a film project and also challenged the Magistrate’s order to lodge FIR, and a notice issued by the police directing them to appear for questioning. “The whole FIR is lodged on a false case. Copyright infringement can be there only when there is comparative work”.
Win for YouTube channel TVF: Delhi HC refuses interim relief to MX Player for exclusive rights on 3 TVF shows
A single judge bench of Delhi HC rejected digital media platform MX Player’s (MXP) petition praying to restrain TVF from selling, licensing, exploiting or assigning rights against the shows developed by TVF titled ‘Immature Season 2’, ‘Aspirants Season 1’ (UPSC Season 1) and ‘Flames Season 3’, to any other market player, pursuant to an agreement signed in March 2020 and a sum of $ 310,000 paid as advance consideration.
- It was contended that the main agreement has not been signed at all by MXP, despite repeated requests by TVF, and till date MXP had not condescended to return the said contract, duly signed. The platform claimed that it could not do so as the Singapore office of its parent company, MX Media and Entertainment Pvt Ltd, where the company is located and incorporated – was shut due to Covid-19.
- The Court ventured to examine the conclusiveness of the main agreement while determining whether there was consensus ad idem at all in the first place for MXP to claim the existence of an agreement between the parties.
- The court noted that it was clear that MXP was unwilling to abide by the covenants contained in the original agreement, after perusing the e-mails exchanged between the parties. The situation is further substantiated by failure of MXP to return duly signed contract to TVF, despite repeated requests from the party.
- It was contended by MXP that the law does not require a contract, to be enforceable, to be signed by both parties. However, rejecting the contention, the court said that the principle has no application in the facts of the present case, as the issue is not one of want of signatures of both parties, but want of consensus regarding the Agreement.
- The court finally noted that clearly there is no consensus ad idem between the petitioner and the respondent. Nor can it be said that the petitioner and the respondent had acted on the basis of the contract. Thus, the petition was accordingly dismissed.
Anniyan producer Aascar Ravichandran asked director Shankar to stop its Hindi remake
Aascar Ravichandran, producer of the movie Anniyan wrote a letter to the director Shankar requesting him to immediately stop its Hindi remake as he is vested with the rights of the film. The said letter was shared by Ramesh Bala, an entertainment industry tracker on his Twitter handle.
The letter contained details of the film and explained how it is an illegal act to adapt a film without its owner’s permission. Ravichandran expressed that he was shocked to know that Shankar is going to remake the Hindi film on the much-acclaimed movie, Anniyan. He continued in the letter to say that he was very upset as Shankar forgot that it was because of him that he regained his ‘lost ground’ and did not ask for his permission. He further added that Shankar should immediately stop the remake as he is the sole owner of the movie. He also warned the director that a legal notice will follow this letter.
Legendry Painter Sobha Singh’s Daughter Accused the Punjab Government for Unethical Use Of Painting
Gurcharan Kaur, daughter of legendary painter Sobha Singh, has expressed resentment over “unauthorized use of a painting” of Guru Teg Bahadur by the Punjab Government in its calendar for the year 2021. She claimed that the painting of Guru Tegh Bahadur was created by Sardar Sobha Singh in the year 1972 and obtained registration of copyright for it in the year 1984. After the death of Sobha Singh the copyright for the painting vests in the name of his daughter Gurcharan Kaur and all rights are reserved with the author/ painter’s family. Caught in the copyright row, thereafter the Government of Punjab dropped Sobha Singh’s painting from celebrations and said that they had had initially used it with “noble intent” and not for profit.
Chennai Court Directed CB-CID To Register Case For Copyright Infringement Over Music Played In ‘Master’ Event
A copyright infringement complaint was filed by Novex Communications Private Limited against the Producer of the film titled ‘Master’. Novex claimed that at the Master movie music release function held at Leela Palace Hotel on 15th March 2020, a few of the songs whose on-ground public performance copyrights for music is owned by Novex Communications Private Limited, were played by Producer without seeking permission from Novex.
Zanjeer Copyright Case To Be Probed By Crime Intelligence Unit Of Mumbai Police
Zanjeer copyright case probed by the Crime Intelligence Unit (CIU) of Mumbai Police. As per reports, they conducted raids at Box Cinema offices at Chincholi Bunder area of Malad where they seized the server owned by the company along with various document and the owner of the company received anticipatory bail from Mumbai court.
‘Enthiran’ Plagiarism Case: Non-Bailable Warrant Issued Against Director Shankar.
The Egmore Metropolitan Magistrate Court II issued a non-bailable warrant against Tamil filmmaker Shankar as he failed to appear before the court several times regarding a copyright plagiarism case.
TVF Series ‘Aspirants’ Accused Of Plagiarism
Nilotpal Mrinal, author of the book Dark Horse, had alleged that 30% of the story of TVF’s ‘Aspirants’ was lifted from his book.
In a social media post, Mrinal mentioned that he is going to initiate legal action against TVF for copying most of the story from his book and not crediting him for the same.
Thiruvananthapuram-Based Artist In Trouble For Copyright Violation
Lloyd John, a musician received the intimation from YouTube citing violation of the Copyright for uploading a revamped version of the renowned poet ONV Kurup’s popular song Mele Poomala from the movie Madhanolsavam.
According to High Court, “remixing or changing the lyrics of a song without permission and using it for commercial purposes is copyright infringement. When the song gets popular on YouTube, there is a commercial advantage for the person uploading it. And doing it without permission is a punishable offence.”
Hansal Mehta’s Captain India accused of plagiarism by Operation Yemen producer
Operation Yemen’s producer Subhash Kale accused the makers of Captain India of plagiarism. He claimed that the plot of the movie is similar to that of their project. Operation Yemen is based on the 2015 Operation Raahat when the Indian Armed Forces under General VK Singh evacuated Indian citizens as well as foreign nationals from Yemen during the Yemeni Crisis.
Although the poster doesn’t mention that Captain India is based on Operation Raahat, Subhash said that the poster has ‘clear giveaways that their film is based on the same incident’.
He claimed that the city of Sana’a, the capital of Yemen is visible on Captain India’s poster, just like how it’s depicted in Operation Yemen’s poster as well. He further added that the city’s architecture and landscape are such that it doesn’t match with any other city in the world. Also, the poster shows carpet-bombing happening over the city, an aeroplane going over Sana’a and the title Captain India are clear giveaways that Hansal Mehta’s film is based on the same incident.
Subhash said that even if the scripts of both films are different, the storyline would be the same and therefore both the films will be similar, making it a repeat of the Scam 1992 (2020) and The Big Bull (2021) episode.
India recognises AI as co-author of copyrighted artwork
For the first time ever in India, the copyright office recognised an artificial intelligence tool – RAGHAV Artificial Intelligence Painting App – as the co-author of a copyright-protected artistic work.
Ankit Sahni, an IP lawyer who owns the AI-based app, is the other author and is registered as the copyright owner. He had filed two copyright applications for two AI-generated artworks, claiming himself as the owner. The copyright office rejected the first application, which listed RAGHAV as the sole author. The second application, on which both Sahni and the AI were named as co-authors, was granted registration.
While the existing legislation has its own set of limitations, the act of granting recognition to an AI program as co-author of an artistic work marks the beginning of an era of change that governments across the world will be working on.
However, Sahni anticipates that the registration may be challenged in court due to ambiguity in the legislation and jurisprudence. Several jurisdictions worldwide do not yet recognise AI authorship under copyright law. In India, the provisions of the Copyright Act are unclear about who can claim authorship of an AI-created work that did not involve any human input, said Sahni.
Earlier South Africa became the first country to issue a patent designating an AI tool – DABUS – as the inventor.
Read More here.
Cult.fit’s ‘Jaa Simran Jaa’ advertisement taken down from YouTube after it was flagged for copyright infringement by Yash Raj Films
Cult.fit’s advertisement which re-enacted the train scene from the Shahrukh Khan and Kajol starrer Dilwale Dulhania Le Jayenge (DDLJ) was taken down from YouTube. This was done because it was flagged for violating the copyright by the production house of DDLJ, Yash Raj Films.
Additionally, Cult.fit also deleted the advertisement and announcement posters referencing to the movie from Twitter, Facebook and Instagram. This advertisement was a part of Cult.fit’s campaign ‘Fitness is not an option’ which is produced by Supari Studios. However, in its statement, Cult.fit has said that the advertisement was released after all due diligence.
Broadcast of Baal Shiv deferred
Broadcast of the television series ‘Baal Shiv- Mahadev ki Andekhi Gatha’ was deferred in furtherance of a copyright infringement suit filed against the said series by a writer and mythologist, Chotenlal Saini.
Mr. Saini had approached the Court seeking an order of injunction against telecast of the Series. However, Justice Gautam Patel permitted the defendants to continue with the promotions and trailers of the series which would also include the new date on which the series will be broadcasted on television without claiming any equities in the same.
Read order here.
The matter was eventually settled between the parties.
Wife declared as copyright owner of literary works of Pulavar Keeran
The Court held that an assignment of copyright cannot be oral. Either a license or an assignment of a copyright has to be in writing in view of the specific provisions of Section 19 and 30 of the Copyright Act. Therefore, as the legal heir of the author, his wife was entitled to the first copyright of the works, the judge said.
The judge allowed the suit with costs and directed the defendant to surrender all master tapes of any records of late Pulavar Keeran contained in the schedule to the plaint and held that the plaintiff would also be entitled to a permanent injunction restraining the defendants from using, copying, reproducing, selling distributing or broadcasting through radio, over the internet or any other media or in any manner exploiting or dealing with the records, audio cassettes, compact discs or any other storage device containing the speeches and lectures of late Pulavar Keeran.
Plagiarism claim against song titled ‘Teri Mitti’
Writer Manoj Muntashir refuted all allegations of him having copied the Teri Mitti song from ‘Kesari’ from a Pakistani song.
Muntashir claims that issues have cropped up against him due to a video made by him on the Mughals where he has used strong words against them, referring to them as glorified dacoits.
De Minimis Defense Doesn’t Protect Minimal Use of Concededly Infringing Material
Richard Bell took a photo of the Indianapolis skyline and published it on various websites. Eleven years later, he registered the photo with the US Copyright Office. Bell later conducted an online reverse image search of his photo to identify potential infringers and subsequently filed more than 100 copyright infringement lawsuits.
Bell sued Wilmott for copyright infringement in 2018, asserting that Wilmott infringed his right to “display the copyrighted work publicly” by making it accessible to the public on Wilmott’s server. The district court granted summary judgment to Wilmott on the de minimis use defense.
The Ninth Circuit rejected the district court’s finding that Wilmott’s infringement was a “technical violation” because Wilmott did not know the photo was still on its website. The Ninth Circuit also found that there was no place for an inquiry into whether there was de minimis copying because the “degree of copying” was total since the infringing work was an identical copy of the copyrighted photo.
Squid Game accused of plagiarism
Fans of the Japanese film (As The Gods Will) have taken to the internet to highlight the similarities between the two. The director of Squid Game didn’t deny that the scenes were similar and stated that he had been working on the project for over a decade.
Delhi High Court slams Newslaundry for its hurtful parody against TV Today Network
The Delhi High Court slammed Newslaundry and held that a parody ruining the other person’s reputation is not justified under the guise of freedom of speech and expression. The Counsel appearing for Newslaundry agreed to take down its video-commentary on the suit filed by TV Today Network against it alleging defamation and copyright infringement.
The development arose when Counsel for the Plaintiff made the Court aware about the videos being made on suit proceedings by the Defendant’s portal. Justice Asha Menon strongly condemned the practice and asked the Defendant to not indulge in such “parallel proceedings”. However, the portal is free to report court proceedings in a fair and transparent manner.
The case is of defamation filed by TV Today Network against the journalists of Newslaundry over articles published on the website and sought damages of Rs. 2 crores with permanent injunctions.
Phonographic Performance Ltd. takes parties to Court to obtain license to play sound recording
On December 22nd, Justice Jamadar of the Bombay High Court issued notice to serve all the unserved defendants in each of the suits returnable 27th January, 2022. In the meantime, the Court also (i) instructed each defendant to maintain audio recordings of the event held in relation Christmas and New Year celebration during 24th December to 5th January; (ii) the audio recordings are to be maintained in such a way that it can be produced in court; (iii) procurement of a license by any defendant from the plaintiff in this period will be without prejudice to their rights and contentions. In another case (Phonographic Performance Ltd. vs. Canvas Communications), the Delhi High Court held that a clear prima facie case was made out in favour of plaintiff and restrained the defendant from exploiting or using any sound recordings or other work in which the plaintiff holds copyright and as would tantamount to infringement of the said copyright held by the plaintiff.
Matter is now listed for hearing on 22nd March, 2022.
Millions of YouTube videos get hit with incorrect copyright claims: Report
More than 2.2 million YouTube videos were hit with copyright claims that were later overturned between January and June of this year, says a new report.
The Copyright Transparency Report is the first of its kind published by YouTube, which said it will update biannually going forward.
The 2.2 million incorrect claims represent less than 1 per cent of the more than 729 million total copyright claims issued in the first half of this year, 99 per cent of which originated from Content ID, YouTube’s automated enforcement tool.
When users disputed these claims, the case was resolved in favour of the uploader of the video 60 per cent of the time, according to the report.
Though mistaken copyright claims have dropped, YouTube creators have long complained about how the platform handles claims, saying overly aggressive or unjustified enforcement can lead to lost income. Copyright claims can result in videos being blocked, audio being muted, or ad revenue going back to the rights owner.
This new report gives shape to a problem that YouTube itself has acknowledged needs updating, the report said.
The report notes that “no system is perfect” and that errors happen even with established guardrails in place to prevent abuse of enforcement mechanisms. When disputes take place, the process provided by YouTube provides real recourse, and over 60 per cent of these disputes were resolved in favor of the uploader, the report said.
No proposal to harmonise regulatory powers of TRAI with IP laws including Copyright Act
I&B Minister Anurag Thakur said the TRAI Act and IP laws define provisions & powers of the respective competent authorities in relevant statutes prescribed for the purpose specified to them.
The central government doesn’t have any proposal to harmonise the regulatory powers of Telecom Regulatory Authority of India (TRAI) with the existing intellectual property laws including the Copyright Act, as per the I&B Minister.
Thakur also said that the government has not yet formed a view on revising Cable Television Networks (Regulation) Act, 1995. He also said that the ministry has duly noted the suggestions it has received from stakeholders.
In January 2020, the MIB had come out with Cable Television Networks Regulation Amendment Bill 2020 and had invited suggestions from the public/stakeholders. One of the key amendments being brought by the ministry is to disallow state governments or their entities as well as religious and political parties from entering the TV distribution space. In clause 4(1), the ministry has inserted a negative list for registration as a cable operator.
The I&B Minister further suggested that the government has no plans to review guidelines for OTT platforms under the IT Rules 2021. Asked about details of complaint against OTT content and the action taken on those complaints, Thakur said that the complaints received in the ministry against content on OTT platforms are forwarded to the respective publishers, who are level- 1 of the grievance redressal mechanism, for redressal under the Rules.
He also said that the content on OTT platforms is governed under the provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 which inter alia provides for a Code of Ethics to be followed by the OTT platforms and a three-tier grievance redressal mechanism to investigate complaints / grievances of violation of the code of ethics by such platforms.
DPIIT Seeks Comments On Inclusion Of Digital Media Within Scope Of Section 31D As Per “Review Of The IPR Regime In India” By DRPSC The DPIIT has sought comments from stakeholders to provide their comments/ inputs/ suggestions to the Department in reference to the observations of the Department Related Parliamentary Standing Committee under Para 14.8 (ii) where it recommended to include digital media within the scope of Section 31D of the Copyright Act.
“Section 31D of the Act deals with statutory licensing for radio and television broadcasting of literary and musical works as well as sound recordings wherein the broadcasters pay royalties to the copyright owner at a rate fixed by the Copyright Board for broadcasting any content. It was informed that digitization and internet culture in India has led to increase in digital content service providers and Over The Top (OTT) video apps, internet music/ podcast apps, etc. in terms of revenue contribution from OTT, India would be the tenth-largest market globally with around 805 million internet subscribers by 2022. Hence, it was suggested that Section 31D should be amended to include OTT platforms, music apps, etc. as ‘internet or digital broadcasters’ under the benefit of statutory license along with traditional broadcasters. The Committee recommends the Department to amend Section 31D for incorporating ‘internet or digital broadcasters’ under statutory license in wake of the rise in digital or OTT platforms with manifold increase in music as well as movie apps and its significant contribution to economy. This would ensure a level playing field by making content accessible on similar terms to both traditional and internet broadcasters alike”.
Read notice here.
Salt Bae faces a $5 million copyright infringement lawsuit by a US-based artist
Turkish chef Nusret Gokce, popularly known as Salt Bae was landed in trouble after a US based artist alleged that the restaurateur and social media star has used his artwork across the globe without his permission.
Logan Hicks, a Brooklyn artist and his fellow Joseph Laruto were hired by Gokce, the mastermind behind the Nusr-Et steakhouse in Dubai and Abu Dhabi, to craft a mural of the fashionable chef in his signature “salt-sprinkling pose”. Hicks in his lawsuit alleged that the first artwork was featured in Miami, however, other commissioned models were been spotted in Dubai, New York, Doha and Istanbul.
Hicks in the beginning of 2020 first discovered that Gokce and his companies had been using the first commissioned image without his permission internationally, in window displays, takeout bags, and even on Menus, according to Hick’s statement in the suit.
Dua Lipa Sued for Putting Up A Paparazzi Picture On Instagram
Integral Images sued Due Lipa for copyright infringement after the singer posted a paparazzi photo of herself on Instagram. Integral Images said that Lipa profited from the photo, as her Instagram feed acts as a marketing tool for her music and is seeking $150,000 (£108,000) damages.
The company was also seeking for an order preventing the singer from further acts of infringement, as well as legal costs.
Lipa is not the first star to be sued for sharing paparazzi images of themselves to social media. Gigi Hadid, Liam Hemsworth, Jennifer Lopez, and Khloe Kardashian have all faced similar cases, while in 2019 both Ariana Grande and Justin Bieber settled complaints brought by photographer Robert Barbera.
Marvel sues to keep rights to Avengers character from copyright termination
Under the termination provisions of copyright law, authors or their heirs can reclaim rights once granted to publishers after waiting a statutory set period of time.
The litigation figures to focus on the “Marvel Method”, a loose collaborative working atmosphere where initial ideas were briefly discussed with artists responsible for taking care of the details. The Marvel Method has been the subject of prior litigation, almost a decade ago, in August 2013, the 2nd Circuit Court of Appeals affirmed a lower court’s ruling that determined Kirby’s heirs couldn’t wrest back his share of rights to the characters because the former Marvel freelancer had contributed his materials as a work made for hire.
The Kirby case was then petitioned up to the Supreme Court, with the late Ruth Bader Ginsburg signaling some interest in taking up the case. Marvel at the time fought hard against any high court review, and before the justices decided, the case was settled.
If the plaintiffs win, Disney expects to at least hold on to at least a share of character rights as co-owners. The studio would have to share profits with the others. Additionally, the termination provisions of copyright law only apply in the United States, allowing Disney to continue to control and profit from foreign exploitation.
Chinese video platform Bilibili releases creator copyright protection program
The program offers services including cross-platform infringement content detection and one-click rights protection for individual creators in the video platform.
The program aims at protecting the original works of Bilibili creators. After joining the program, uploaders can begin to import their original content into the detection program. Bilibili will automatically display any infringing video links on other video platforms and the estimated broadcast volume of infringing videos, and automatically track the infringement of newly added original works.
The platform will start processing submitted infringing links within 3 working days, and inform the creator of the progress of rights protection by e-mail.
Quentin Tarantino lands in trouble for his NFTs based on Pulp Fiction
The Hollywood studio, Miramax, sued director, Quentin Tarantino, over his publicized plans to sell non-fungible tokens (NFTs) based on the movie, Pulp Fiction. The suit has claimed that Tarantino has no rights over the NFTs associated with the movie and he has violated the company’s copyright and trademark. The studio has asked for an immediate halt to the upcoming sale.
Tarantino’s team claims that the contract is clear and he is entitled to sell the NFTs of his hand-written script and a drawing inspired by some element of the scene for Pulp Fiction. However, the studio stated that although Tarantino has right to publish pieces of screenplay, but NFTs do not fall under that umbrella.
EU Top Court Hands Win To YouTube In User Copyright Fight
Europe’s top court in a recent ruling held that online platforms are not liable for users uploading unauthorized works unless the platforms failed to take quick action to remove or block access to the content. The Court held that “As currently stands, operators of online platforms do not, in principle, themselves make a communication to the public of copyright-protected content illegally posted online by users of those platforms”.
“However, those operators do make such a communication in breach of copyright where they contribute, beyond merely making those platforms available, to giving access to such content to the public,” judges said.
The EU court said platforms could also be liable if they do not put in place the appropriate technological tools to tackle copyright breaches by their users or where they provide tools on their platforms for illegal sharing of content.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 was notified by the Ministry of Electronics and Information Technology in February, 2021. The Rules provided three months timeline to social media intermediaries in order to comply with the New IT Rules thereby making all social media platforms to comply with the new Rules by May 26, 2021.
The Rules provides the due diligence to be followed by an intermediary (including social media intermediary) while discharging its duties, Grievance Redressal Mechanism and Digital Media Code of Ethics.
Key Updates round the Year Relating to the Digital Media Ethics Code
Delhi And Kerala High Court Issues Notice In Challenge to Information Technology Intermediary Guidelines
The Information Technology (Guidelines for intermediaries and Digital Media Ethics Code) Rules, 2021 were notified by the Union Ministry of Electronics and Information Technology last month. Subsequently, a petition challenging the vires of the said guidelines has been filed in the Delhi High Court by Foundation of Independent Journalism & Ors v. Union of India. The Delhi High Court on March 09, 2021 issued notice in this petition challenging the recently introduced intermediary guidelines. The Court will hear both the parties on the next hearing, April 16.
Further, in a petition filed by LiveLaw News Media Pvt. Ltd. challenging the constitutional validity of the Rules, the Kerala high Court issued notice. A single bench of Justice PV Asha also restrained the Central Government from taking any coercive action against LiveLaw under Part III of the IT Rules which deal with digital media regulation.
WhatsApp Moves Delhi High Court Challenging The Traceability Mandate Under It Rules, 2021
WhatsApp LLC filed a petition against Union of India challenging the traceability requirement under Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. In its petition WhatsApp submitted that this requirement would force it to break end-to-end encryption on its messaging service, as well as privacy principles underlying it, and infringes upon fundamental rights to privacy and free speech of hundreds of millions of citizens using WhatsApp to communicate privately and securely. Further that the said provision does not satisfy the three-part test set forth by the Hon’ble Supreme Court in the K.S. Puttaswamy vs Union of India judgement i.e., legality, necessity and proportionality. Rule 4(2) is ultra vires its parent statutory provision, Section79 of the Information Technology Act as there is no policy declaration in Section 79 to impose a requirement of identification of first originator. WhatsApp further submits that it is not aware of any country that requires intermediaries to enable identification of first originator of information on end-to-end encrypted messaging services, even if it means fundamentally changing their platforms to do so.
In response to the petition, the Government came out with a press release stating it does not have any intention to violate the privacy of a citizen. At the same time, the government said that Right to Privacy is not absolute and that compliance with the rules was necessary for ‘public interest’. “Such requirements are only in the case when the message is required for prevention, investigation or punishment of very serious offences related to the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, or public order, or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material,” the release further said.
Madras High Court Admits Another Challenge To IT Rules, 2021; Plea Moved By Digital News Publishers’ Association, Journalist Mukund Padmanabhan
One more writ petition filed challenging the constitutionality of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. The Petition filed by Digital News Publishers Association and journalist Mukund Padmanabhan, it has been tagged along with the petition filed by Carnatic singer TM Krishna. The Madras High Court issued a notice to the Union of India while admitting the petition. This writ petition challenges the constitutionality of the Rules and alleges that it violates the Fundamental Right of Equality Before Law (Article 14), freedom of speech and expression (Article 19(1)(a), and the right to practice any profession or to carry on any occupation, trade or business (Article 19 (1) (g)). In this backdrop, the petitioners have urged the High Court to declare the IT Rules, 2021 as violative of Articles 14 and 19 (1) (a) of the Constitution of India.
The Court has granted the petitioners liberty to approach the Court for interim relief if any coercive action is taken against them invoking Rules 12, 14 and 16 of the IT Rules, 2021.
Central Government Seeks Transfer of Cases Challenging The Constitutionality of IT Rules, 2021 To The Supreme Court
The central government in a transfer petition sought transfer of all cases challenging the constitutionality of the IT Rules 2021, from various High Courts to the Supreme Court. The Supreme Court did not stay the proceedings in different High Courts challenging the rules however, it did order the transfer petition to be tagged with a pending special leave petition relating to the issue (Union of India vs Foundation for Independent Journalism & ors). The transfer plea contended that if such individual petitions are decided independently by High Courts, the same may result in a likelihood of conflict between the decisions of the Hon’ble High Court and the Supreme Court. Currently, several perditions related to the IT rules have been filed before the Delhi, Bombay, Madras, and Kerala High Courts.
Meanwhile, in another petition filed by News Broadcasters Association challenging the Information Technology (Intermediary Guidelines & Digital Media Ethics Code) Rules, 2021 (The News Broadcasters Association Vs. Ministry of Electronics and Information Technology), the Kerala High Court on July 9 issued notice to the Central government on a petition filed by the News Broadcasters Association and granted the prayer of the petitioners that no coercive actions may be taken against them for non-compliance with part III of the IT Rules, 2021
Petition Filed By A Lawyer Against Twitter In Delhi High Court Alleging Non-Compliance Of IT Rules, 2021
A lawyer named Amit Acharya had filed a petition in Delhi High Court against Twitter alleging that Twitter did not comply with the new IT Rules 2021 as he was unable to find details of a resident grievance officer on the microblogging platform’s website. He seeks that the Court should direct Twitter to appoint a resident grievance officer as mandated under the IT Rules 2021 and to implement other sections of the new rules.
It is noteworthy to mention that Twitter was one of the last platform to comply with the IT Rules, 2021.
Twitter And Its Intermediary Fiasco
The mainstream media in India reported that Twitter “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 was also a case filed by the UP Govt. against Twitter (a late night FIR) which is doing the rounds. The comment and the tweet arose 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.
Google Seeks Protection Against The New IT Rules (Digital Media And Ethics Code, 2021) Claiming That It Is A Search Engine And Not A Social Media Intermediary
Google moved the Delhi HC seeking interim protection against its declaration as a “Social Media Intermediary” (SMI) under the IT Rules, 2021.
Appeal was filed against the order of the court which had directed it to remove globally remove content which was flagged as “objectionable” by a female petitioner, for being “offensive” and having been taken from her social media accounts on Facebook and Instagram, and circulated without her consent. Google said that while it had no issues against the directions issued in respect of this particular petitioner, it was aggrieved by the blanket, “template directions” issued by the judge.
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”), 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. The industries asserted 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.
Delhi High Court Seeks Response From Twitter, Facebook, YouTube In PIL Seeking Action For Revealing Identity Of Sexual Offence Victims
The Delhi High Court seeks response from social media platforms viz. Twitter, Facebook and YouTube in PIL seeking action for revealing identity of sexual offence victims. The Plea also prayed for action against BuzzFeed, The Citizen, The Telegraph, iDiva, Janbharat Times, News 18, Dainik Jagran, United News of India, Bansal Times, Dalit Camera, The Millennium Post and Wikifeed.
Central Government filed counter-affidavits in response to the petitions challenging the constitutional validity of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021)
In all there are 19 writ petitions and each emanates a unique set of circumstances. Petitions have been filed challenging the constitutionality of IT Rules, and seeking a declaration of the same as “ultra vires, void and violative of Articles 14, Article 19(1)(a) and 19(1)(g) of the Constitution of India”.
The counter stated that the Rules were not unconstitutional as section 87 of the IT Act, 2000 stipulated that guidelines can be issued for intermediaries and for procedures and safeguards to block public access. Furthermore, it was contended that the Rules are not new but an amendment to the already existing rules (Intermediary Guidelines of 2011) which have been upheld as constitutionally valid by the Supreme Court in Shreya Singhal v. UOI.
Madras High Court takes prima facie view: Says coercive application of IT Rules against Intermediaries violates Article 19(1)(a)
Certain petitions including a Public Interest Litigation were filed before the Madras High Court by acclaimed Carnatic musician TM Krishna, Digital news Publishers Association as well as journalist Mukund Padmanabhan.
The Hon’ble High Court in these petitions passed an interim order which stated that the Bombay High Court’s order dated August 14, 2021 which stayed the operation of sub-rules (1) and (3) of Rule 9 of the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 ought to have a ‘pan-India’ effect. These sub-rules mandate adherence to the Code of Ethics that have been annexed to the said IT Rules, 2021 and provide for a three-tier structure for addressing the grievances made in relation to publishers.
Furthermore, the Court also observed that any action taken citing Rule 3 and Rule 7 of the IT Rules, 2021 would be subject to the outcome of the challenge of the constitutional validity of the Rules. It also noted that “There is substantial basis to the petitioner’s assertion that Article 19(1)(a) of the Constitution may be infringed in how the Rules may be coercively applied to Intermediaries.”
Read Order here.
Bombay High Court Stays Enforcement Of ‘Code Of Ethics’ Prescribed By IT Rules
A division bench of the Bombay High Court, comprising of Chief Justice Dipankar Dutta and Justice GS Kulkarni, on August 14, 2021 stayed Rules 9(1) and 9(3) of the recently enacted Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021. These rules made it mandatory for the digital news media and online publishers to adhere to the “Code of Ethics” provided by the Rules.
The High Court observed that these provisions infringe the fundamental right of freedom of speech provided under Article 19(1)(a) of the Constitution of India and are also in contradiction with substantive provisions of the parent act, the Information Technology Act, 2002.
The Court, however, refused to stay Rules 7, 14 and 16 of the Information Technology Rules, 2021.
- Rule 7 deals with penalties for intermediaries for violating the prescribed Rules.
- Rule 14 prescribes formulation of an inter-developmental committee as an oversight mechanism for digital media. The Court observed that since the committee has not been constituted, there is no ‘immediate urgency’.
- Rule 16 deals with the Centre’s power to block access to content.
Lastly, the Court observed that in a democracy, dissent is vital and is vital for its functioning, however, the IT Rules, 2021 can have a chilling effect on the fundamental right of freedom of speech.
Read order here.
The Supreme Court Issues Notice To Centre On PIL Seeking To Regulate Facebook, Twitter
The Supreme Court issued notice to the Centre on a PIL seeking rules to regulate social media platforms such as Facebook and Twitter in order to hold them to account for allegedly spreading fake news and hate speech. The plea has also sought directions to the Centre for establishing a mechanism for automatic removal of hate speech and fake news within a short span of time.
Delhi High Court issues notice in petitions by WhatsApp and Facebook challenging the first originator requirement under the IT Rules 2021
The Delhi High Court, issued notice in petitions by WhatsApp and Facebook challenging the tracing of the first originator requirement under the recently notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The petition said that the provision which entails the said requirement is against the concept of end-to-end encryption. This is because it would force private companies to collect and store data.
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 had 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 order of the court can be found here.
Note: These new IT Rules have been challenged before the Delhi HC and is pending.
MIB Preparing Charter For Functioning Of SRBs Formed By OTT, Digital Platforms (Read Here)
The Ministry of Information and Broadcasting (MIB) will come up with a charter that will lay the ground for the working of self-regulating bodies (SRBs) for OTT platforms and digital news websites. For this charter, the ministry will take help of internal and external experts, which will list their responsibilities. Notably, the SRBs are the second of the three-tier grievance redressal mechanisms mandated by the government under the IT Rules 2021.
Centre Told Delhi High Court That WhatsApp Is Obtaining “Trick Consent”
Delhi High Court Sets Template Directions For Intermediaries
The Delhi High Court issued template guidelines while deliberating on two major questions namely “when a party seeks relief from the Court in order to remove the offending content from the world-wide-web, what directions should the Court pass to make its order implementable and effective; and to which parties such order to be issued;” and What steps should the law enforcement agencies take so that the offending content does not resurface on the world-wide-web. Here (Read our post here)
Centre Proposed To Amend E-Commerce Rules To Curb Flash Sales, Appoint Grievance Redressal Officers
The Central Government proposed amendments to the Consumer Protection (E-Commerce) Rules, 2020(“Rules”). The Rules are proposed for e-commerce marketplaces, including Amazon and Flipkart, following complaints from small businesses of misuse of market dominance and deep discounting by the online retailers. According to amendments to the Consumer Protection (E-commerce) Rules, 2020 suggested by the Consumer Affairs Ministry, the Rules proposes changes such as: (i) mandatory registration requirements for online retailers, (ii) greater scrutiny of flash sales, (iii) enhanced liability of e-commerce entities, and (iv) a stronger grievance redressal mechanism (v) Limit so-called ‘flash sales’ of goods and services by e-commerce companies like back-to-back sales (vi) allow only specific flash sales that limit customer choice (vii) Disclosure regarding cross-selling of goods (viii) Prohibition of mis-selling of goods (ix)Non-discrimination between imported and domestic goods etc. A period of 15 days (i.e., till 6th July 2021) has been given to all stakeholders for submitting their responses, as part of public consultation process.
Kerala Court Orders Facebook To Take Down Content Infringing Work Of Vempati Ravi Shankar
The widow of late Vempati Ravi Shankar, a Kuchipudi maestro, Sweety Priyanka Vempati Ravi Shankar filed a plea in a Kerala court seeking permanent prohibitory injunction restraining Facebook and other unknown persons from infringing the copyright of sound recordings and other dramatized works, created by late Vempati Ravi Shankar and presently held by the plaintiff. The suit also sought an injunction to restrain the public from using the title ‘Vempati Ravi Shankar’ without the prior consent of the plaintiff. However, the court granted a temporary injunction, ordering Facebook to take down the infringing content.
New Rule by YouTube requires publishers to furnish details of their accounts to Ministry of Information and Broadcasting
YouTube, video streaming giant has announced that it will update its Terms of Service and it shall be effective from January 05, 2022. The said terms of service will be brought in to help clarify and make it easy for its users to understand what should be expected while using the services of the video streaming giant. The said update necessitates the Indian news publishers to furnish the details of their YouTube accounts to MIB.
Further if the said updates are violated then it would result in issuance of warnings or loss of access to the accounts or the termination of the said accounts. This was done by YouTube to bring in more transparency about how it develops, improve and further updates its terms of service.
Twitter in a tussle with Sameer Wankhede and his wife
In the matter of civil proceedings being initiated by the NCB Zonal Director, Sameer Wankhede, and his wife against social media companies such as Google India, Facebook and Twitter, the couple has sought permanent injunction from social media companies putting up fake and malicious stories about them.
Accordingly, Twitter had issued a 22-pages reply wherein they contended that social media intermediaries have no control over the content being posted on the platform by the users and they are immune to such actions under Section 79 of the Information Technology Act, 2000. Further, the social media giant also held that the hashtags and profiles posting them cannot be removed en masse.
Twitter has also questioned the jurisdiction of the court and the maintainability of the suit. This suit has been filed in relation to the ongoing legal tussle between Sameer Wankhede and Maharashtra minister, Nawab Malik over the minister’s allegations against the officer and his family.
IBF And IAMAI Split To Form Two Separate Self-Regulatory Bodies
The Indian Broadcasting Foundation (IBF) has changed its name to Indian Broadcasting and Digital Foundation (IBDF) by also giving membership to over the top (OTT) platforms. Earlier most OTT platforms were under the aegis of the Internet and Mobile Association of India (IAMAI). This has resulted in most broadcaster based OTT platforms like Disney+ Hotstar, ZEE5, SonyLIV, Voot, Sun NXT, Discovery+, Jio TV, and Jio Cinema to join IBDF and others like Netflix, Amazon Prime Video, ALTBalaji, Hungama Play, MX Player, ShemarooMe, Aha, Lionsgate, Firework TV, and hoichoi to stay in the IAMAI camp.
The Internet and Mobile Association of India (IAMAI) on May 28, 2021 formed the Digital Publishers Content Grievances Council (DPCGC), a Level-II self-regulatory body for the Original Curated Content publishers (OCCP).
Justice Arjan Kumar Sikri Will Chair The Grievance Redressal Board Digital Publisher Content Grievances Council (DPCGC)
The Internet and Mobile Association of India (IAMAI) named former supreme court justice Arjan Kumar Sikri as chairman of the Grievance Redressal Board (GRB), formed as a part of the Digital Publisher Content Grievances Council (DPCGC). The DPCGC currently has 14 publishers of online curated content as members, which include Amazon Prime Video, Alt Balaji, Apple, BookMyShow Stream, Eros Now, Firework TV, Hoichoi, Hungama, Lionsgate Play, MX Player, Netflix, Reeldrama, Shemaroo and Ullu. The Grievance Redressal Board (GRB) will function as an independent body and act as the second-tier within the three-tier grievance redressal mechanism as envisioned by the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
HURTING RELIGIOUS SENTIMENTS
FIR Against Prakash Jha For ‘Caste Discrimination’ In Ashram Web Series
An FIR was lodged in Jodhpur district of Rajasthan against filmmaker Prakash Jha for allegedly hurting the sentiments of scheduled castes and scheduled tribes in the web series ‘Aashram’, produced by him. ‘Aashram’ is a Hindi-language crime web series directed by Prakash Jha for MX Player original. The complainant added that due to such “poor and loathsome” portrayal through social sites and web series, incidents like molestation and lynching are taking place during the marriage processions of SC/ST communities in western Rajasthan.
Mirzapur Series Row: Allahabad High Court Stays Arrest Of Producers Farhan Akhtar & Ritesh Sidhwani
High Court ordered stay of arrest of ‘Mirzapur Web Series’ producers Farhan Akhtar and Ritesh Sidhwani for FIR which was lodged against the petitioners (Farhan Akhtar & Ritesh Sidhwani). Complainant had claimed in the FIR that the series promotes illicit relationships, abusive language, casteism and portrays a wrong/ polluted picture of the legal/judicial system therein and the portrayal of the town of Mirzapur in such a manner is far away from reality of life in Mirzapur and thereby has hurt his sentiments.
Plea in Madras High Court seeks ban in Dhanush’s song, ‘Pandarathi Puranam’
The song ‘Pandarathi Puranam’ from movie ‘Karnan’ starring Dhanush was released and subsequently a petition was filed in the Madras High Court seeking a ban on the said song. The petitioner contended that the said song sung by Deva and tuned by Santosh Narayan could generate communal conflict and thus the ban is sought. The petitioner has further contended that the film should only be released after the said song is removed from the movie.
Bombay HC quashes FIR filed against band Dastaan LIVE booked in 2019 for ‘hurting religious sentiments’
The Goa bench of the Bombay HC quashed FIR filed in 2019 against the band Dastaan Live for allegedly hurting religious sentiments. The court noted that the Panaji Police registered a frivolous compliant without any justification.
- On December 17, 2019, a band known as “Dastaan Live” performed at Serendipity Arts Festival at Campal, Panaji, Goa. As a part of the live performance, the band played their set-list of eight songs which were performed in various cities around India, unhindered, till then. One such song performed was the “Mantra Kavita” which had the use of the OM along with certain abusive language.
- Next day, a complaint was lodged by one K Venkat Krishna, who alleged that “OM” is quite sacred to the Hindus and if the same is recited in a negative narrative or clubbed with abusive words or phrases, then, the same amounts to insulting religion and religious beliefs.
- Following which 4 band members were arrested and were booked under section 295 A of the Indian Penal Code (IPC).
- After going through the entire text of the song in question, the court noted that it is, “apparent that the complainant has adverted to only one small portion of the composition and by interpreting the same or rather misinterpreting the same, made the following vague allegations, which, according to us, do not even remotely constitute the ingredients of Section 295-A.
- The division bench held that the police authorities are expected to be quite sensitive in such matters, because, the freedom of speech and expression is at stake in such situations. The bench further stressed that the criminal machinery ought not to have been set into motion based on such a complaint. This is abuse of the process, because, it is apparent that the Police authorities have not even taken cognizance of the legal position explaining the scope of section 295-A of IPC.
The court noted based on a frivolous complaint, some band members were incarcerated while others were forced to seek anticipatory bail. The court said that police authority was neither justified in registering the FIR nor arresting any of the band members.
Case Registered Against Taarak Mehta Ka Ooltah Chashma Actor Munmun Dutta Under SC/ST Act
A case was registered against the Taarak Mehta Ka Ooltah Chashmah actor Munmun Dutta under the Scheduled Castes and Tribes (Prevention of Atrocities) Act. This was done after she allegedly used a casteist slur in one of her make-up videos. After facing backlash, Dutta issued an apology on Instagram and said that the word was misinterpreted due to the language barrier.
Sanatan Sena Files A Criminal Complaint Against Yash Raj Films, Aditya Chopra And Akshay Kumar For Their Movie Titled Prithviraj
Sanatan Sena through its National President, Surjit Singh registered a criminal complaint against makers of the film, Prithviraj, including its production house Yash Raj Films, Aditya Chopra and its actor Akshay Kumar. Sanatan Sena registered the criminal complaint against the makers under the Indian Penal Code, 1860 on various grounds. The central ground for the complaint was that “any Indian cannot even think of addressing Hindu Warrior King in a singular manner but the makers tried to name the film as ‘Prithviraj’. Further, it also mentions that such an act can hurt the religious and social sentiments of people. This complaint was the second objection that was raised against the title of the movie. Earlier, Karni Sena had raised their objection regarding the title of the film.
Madras HC Quashes Criminal Case Against Actor And Politician Kamal Haasan For Comments On ‘Mahabharata’
The Madurai Bench of the Madras High Court 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 Mahabharata, 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.
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 Gods 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.
Kerala High Court dismisses PIL against the release of the movie, ‘Eesho’
The Kerala High Court dismissed a public interest litigation, seeking a directive to Central Board of Film Certification to not grant permission to release ‘Eesho’, a Malayalam movie. The petition was filed by Christian Association and Alliance for Social Action (CASA). The bench comprising of Chief Justice S. Manikumar and Justice Shaji P Chally, while dismissing the petition observed that the Court cannot interfere with the certification of a film merely on its name.
‘Provocation Depends on Mental Attitude of People’: Delhi High Court Disposes Plea to Restrain Movie ‘The Conversion’
The Delhi High Court refused to restrain the release of film ‘The Conversion’, challenged on account of allegedly displaying communally charged content and having the potential of provoking hatred among religious communities.
The Bench noted that the petition has been preferred merely on the basis of the trailer, without reference to the entire context of the movie. It further stated that notice cannot be issued on the basis of “one man’s provocation” and it thus directed the Ministry of Information and Broadcasting to decide the representation made to it by the Petitioner, as expeditiously as possible.
The plea filed by All India Practising Lawyers Council averred that the Trailer of the Movie depicts biased and communal content and that the movie has the potential of communal polarization amidst the upcoming Uttar Pradesh elections.
Case Title: All India Practising Lawyers Council v. Union of India & Ors.
Sabyasachi mangalsutra ad with ‘semi naked models’ outrageous to Hindus: Lawyer sends notice
Mumbai based lawyer, Ashutosh J Dubey in his notice asserted that the use of semi-naked models in a mangalsutra ad was outrageous to the Hindu community and Hindu marriage.
The notice went on to explain the significance of Mangalsutra and its values in the Hindu community.
In his notice the lawyer did not fail to mention that the promotion of the Mangalsutra was featured on heterosexual and same-sex couples.
The lawyer demanded that the advertisement be pulled down and a public apology be issued within 15 days.
Delhi High Court asks Twitter to remove objectionable images of Hindu goddess Kali
The Bench of Chief Justice DN Patel and Justice Jyoti Singh directed Twitter to remove the images and respect the sentiments of the general public.
“The Grievance Officer of Twitter was informed that the said content put by twitter user @Atheistrepublic was in grave contravention of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 and non-compliance of the rules shall make Twitter lose its legal immunity provided under section 79 of Information and Technology Act, 2000. The said content posted by the twitter user @AtheistRepublic is abusive, insulting towards Hindu gods and Goddesses and has been put by the said user to cause hatred and ill will in the society,” the petition said.
Senior advocate Siddharth Luthra appearing for Twitter submitted that Twitter will abide by the directions of the Court and the same can be put in the order as well.
Netflix, director Mira Nair gets notice from Shia Personal Law Board over A Suitable Boy
The All-India Shia Personal Law Board (AISPLB) sent a legal notice to filmmaker Mira Nair, Netflix and producers of web series ‘A Suitable Boy‘ over their portrayal of a ‘tazia‘ (replica of Imam Husain’s mausoleum) in one of the episodes.
The notice claimed that the makers of the series intentionally hurt millions of people’s religious sentiments. Through their notice the Board demanded that the producers should remove the scene from the web series and issue a public apology.
The notice comes in the vague of increasing concern for freedom of expression exercised by artists, as recently numerous notices and cases have been filed against stand-up comedians, producers and film makers for hurting religious sentiments. The grey area needs to be interpreted in light of theory of proportionality to balance out to the freedoms and reasonable restrictions enshrined in our constitution.
The series by Netflix is directed by Mira Nair and inspired by Vikram Seth’s eponymous novel.
Makers of Tamil movie, Jai Bhim, served with legal notice by Vanniyar Sangam over showing their community in bad light
Vanniyar Sangam, the parent body of the caste-based party Pattali Makkal Katchi (PMK), issued a legal notice to the makers of the Tamil movie Jai Bhim and OTT Platform Amazon Prime, where the movie is being streamed. The movie has certain scenes where the organization’s symbol is visible and that has seemed to shown their community in a bad light.
The notice demands an unconditional apology along with damages of Rs. 5 crores within 7 days from the receipt of the notice. The notice has also asked the filmmakers and the people associated with the film to cease and desist from making or publishing any false, malicious and defamatory remarks against the Vanniyar community and its people.
Kangana Ranaut Moved Bombay High Court To Quash Mumbai Police FIR Over Khalistani Remarks On Farmer’s Protest
Actor Kangana Ranaut approached the Bombay High Court to quash Mumbai police’s FIR over her derogatory Instagram posts about the Sikh community and Khalistani movement after the Prime Minister’s announcement to repeal farm laws:
On November 23, the Khar Police booked Kangana under section 295A IPC relating to outraging of religious feelings based on a complaint by members of the Sikh community.
The complainants alleged that in her Instagram post, Ranaut drew parallels between protesting farmers, and Khalistanis. She claimed that Khalistani’s were “arm-twisting the government and pointed out that the former prime minister Indira Gandhi had crushed them like mosquitoes”.
Saregama to change name and lyrics of the song ‘Madhuban’
After Madhya Pradesh Home Minister Narottam Mishra alleged the video of the track “Madhuban” to be hurting the religious sentiments of Hindus, Saragama has agreed to change the name and lyrics of the song. Saregama announced that the new song will replace the old one across all platforms over the next 3 days. The song stars Sunny Leone and features Kanika Kapoor and Arindam Chakroborty.
FIR Filed Against Tandav Makers, Actors, Amazon Prime in Mumbai
Mumbai Police registered an FIR against the makers and cast of Amazon Prime’s controversial web series “Tandav”, based on a complaint lodged by a BJP MLA in the city. The case was registered by the Ghatkopar police against the actors of the web series, including Saif Ali Khan and Mohd Zeeshan Ayyub, its director Ali Abbas Zafar, producer Himanshu Mehra, writer Gaurav Solanki, head of Amazon’s India head of original content Aparna Purohit, Amazon India’s head Amit Agarwal.
Bombay High Court Grants Transit Anticipatory Bail to Makers Of ‘Tandav’
A single-judge bench of Justice Prakash D Naik also granted similar relief to Aparna Purohit, head of content, India, Amazon Prime, along with producer Himanshu Krishna Mehra and writer Gaurav Solanki. The plea stated, “The web-series is a work of fiction and is an Indian Hindi political drama showcasing coming together of different worlds under the gamut of politics. It is a dramatic take of the powerplay between people at the high level to secure their position(s). The web-series and the characters thereof in no manner depict/portray/represent any gods and/or goddesses of any religion whatsoever.”
Tandav Case: Amazon Prime Video Content Head Aparna Purohit Granted Protection From Arrest By Supreme Court; SC Expresses Dissatisfaction Over IT Rules 2021
The Supreme Court granted protection from arrest to India Head of Amazon Prime Video, Aparna Purohit in the case registered against her in connection with the web series ‘Tandav’. Supreme Court proceeded to issue notice to the government in the matter and protected Purohit from arrested subject to her cooperating with the investigating agency. The Apex court however remarked: that it found the regulations insufficient to govern the platforms and lacking teeth in view of absence of prosecution.
Plea Against Colors TV Show ‘Namak Issk Ka’: Allahabad High Court
On hearing a PIL, the Allahabad High Court dismissed the PIL filed by Lucknow based dance society, namely ‘Cultural Quest’, seeking to stop public exhibition of a new programme (serial) launched on Colors TV, titled “Namak Issk Ka” alleging that the show’s promo wrongly puts a question to married ladies who have danced on some occasion. The show was alleged to be aired in violation of the provisions of Cinematograph Act, 1952.
Smoking Scene In ‘K.G.F Chapter 2’ Teaser Irks Karnataka Health Department
The Karnataka State Anti-Tobacco Cell and Health Department have objected to visuals showing actor lighting a cigarette and smoking in the released teaser of film “KGF Chapter 2”. Officials from The Karnataka State Anti-Tobacco Cell decided to seek deletion of the teaser from online platforms, since the visuals showing the actor smoking a cigarette violated Section 5 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) 2003.
Parliamentary Panel For ‘Reasonable’ Curbs on OTT Content
CBFC chairman Prasoon Joshi has argued in favour of regulating over the top (OTT) video platforms during a meeting of the Parliamentary Standing Committee on Information and Technology, according to multiple media reports. Led by Congress MP Shashi Tharoor, the committee had met to review the functioning of the CBFC.
CBFC Issues Notification To Display Title, Credits In Language Of Dialogues Of Films
The Central Board of Film Certification (CBFC) has issued a new notification to filmmakers, to display the title, casting and credits of a film in the language of the movie that has been applied for certification and the same may be displayed in any other language if so desired.
NCPCR asks Netflix to stop streaming the recently released series, Bombay Begums
The apex child rights body, National Commission for Protection of Child Rights (‘NCPCR’) has sent a notice to Netflix, in which it asked Netflix to stop streaming the recently released series, Bombay Begums. The child rights body while doing so has contended that the said series portrayed children appropriately, which will pollute young minds and also result in their abuse and exploitation. Further, NCPCR in its notice has said that if Netflix did not respond to the notice, the body will initiate appropriate legal action against it.
Supreme Court Stays Cases In High Courts On OTT Content Regulation
A three-judge bench of the Supreme Court led by Justice Chandrachud while hearing Central government’s transfer petition seeking transfer of cases from various High Courts regarding the OTT content regulation stayed all the proceeding relating to OTT content regulation filed by various online media streaming platforms like Amazon Prime Video, Netflix etc. Further, the Court said that it will hear the matter next week after Holi.
Read order here.
NCPCR asks I&B Ministry To Direct Netflix To Remove ‘Inappropriate’ Scenes From Bombay Begums
As per reports, NCPCR on March 26 asked the Information and Broadcasting Ministry to order Netflix to remove a few scenes from its series Bombay Begums which allegedly portray children inappropriately. In a letter to Information and Broadcasting Ministry Joint Secretary Vikam Sahay, National Commission for Protection of Child Rights Chairperson Priyank Kanoongo claimed that the Netflix series, Bombay Begums, has not only violated the prevailing law of the land and guidelines, it’s continuing the same and affecting children’s interest to a very large extent. The NCPCR said considering the “seriousness” of the issue, it recommended the Ministry of Information and Broadcasting (a regulatory authority of OTTs under the new guidelines) to issue directions to Netflix at the earliest to ensure that the aforementioned scenes are immediately removed from the series and to take appropriate measures as per due procedure. “You are further requested to furnish an ATR (action-taken report) in this regard within seven days of issue of this letter, failing which the commission will be constrained to initiate proceedings under Section 14 of CPCR Act, 2005,” Kanoongo said in the letter.
Plea in Delhi HC seeks constitution of Regulatory Authority for Non-Film songs, music videos
A petition in the nature of PIL was filed before the Delhi HC on the issue of regulation and censorship of non-film songs, music videos and their lyrics, arising from the fact that such content includes the language which are demeaning women and promoting consumption of liquor/drugs etc. The petition has stated that the Cinematograph Act, 1952 is only applicable to the contents of film and songs, and the content in the form of music and video released by individual artist fall outside the purview of the act and therefore is unregulated. The Petitioner has sought for an authority like CBFC (Central Board of Film Certification) in place to regulate, censor or review such content which are in the nature of non-film songs and are directly uploaded on the internet or streamed through different applications.
The directions have been sought on Ministry of information and broadcasting for constituting such regulatory authority for certification of such content. Additionally, the petitioner has sought to direct Ministry of Electronics and Information Technology to constitute a body to screen every such content before they are released on Internet.
Google v Oracle: Supreme Court declares Google’s code copying fair
A decade-long battle over copied code in Google’s Android operating system has ended in the US Supreme Court. In a landmark decision on April 5, the US Supreme Court has ruled that Google did not violate the copyright of software giant Oracle when it used, what are known as Application Programming Interfaces or APIs, of the Java programming language in its Android operating system. Oracle acquired Java as part of its buy-out of Sun Microsystems in 2010 and within weeks after that, it sued Google for $ 9 billion for what it alleged was the theft by Google and Android, of 11,500 lines of code across 37 Java APIs.
In a 6-2 decision, the apex US court said that Google’s copying of the API to re-implement a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative programme, constituted a fair use of that material. The ruling has wider ramifications. The worldwide software development industry is also free to use these APIs without having to pay Oracle for the privilege.
Read Order here.
Removal Of Offending Content From Internet: Delhi High Court Lays Down Procedure, Guidelines For Intermediaries, Govt. Agencies
In another breakthrough judgement to protect the privacy of the citizens, a single judge bench of the Delhi High Court, comprising of Justice Anup Jairam Bhambani, held that photographs taken from Facebook and Instagram accounts and uploaded on pornographic website without the consent of such person would amount to an offence u/s 67 of the IT Act.
The observation came in a petition alleging that petitioner’s photographs posted on her Facebook and Instagram accounts were taken without her knowledge or consent and were unlawfully posted on pornographic website. The Bench also added that in such cases, the Court may pass an order of injunction or restraint.
Further, the role played by intermediaries was also emphasized regarding their duty to inform their users regarding unfair activities. It is also made mandatory for them to remove and disable access to offending content once they receive ‘actual knowledge’, within 24 hours, along with blocking of search results throughout the world. Failure to do so can amount to loss of liability available u/s 79(1) of the IT Act.
The Bench also issued specific and general directions for the relevant parties. The directions were based on Intermediaries and Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and included that the Court may issue an order for the website or online platform to remove the offending content within 24 hours of the receipt of the order. However, the website has to preserve the content for purpose of evidence. The intermediary has to employ pro-active monitoring by using automated tools to identify such content. Furthermore, the aggrieved party can be directed to make a complaint on the National Cyber-Crime Reporting Portal.
Read Judgement here.
CBFC Blurs “Mumbai Saga” Scene Depicting RSS In Bad Light
The CBFC has blurred a scene depicting Rashtriya Swayamsevak Sangh (RSS) in a derogatory manner in the film “Mumbai Saga”. The film, produced by Sangita Ahir, wife of Shiv Sena leader Sachin Ahir, was streamed on Amazon Prime Video.
The CBFC has taken the action after an RSS worker Mahesh Bhingarde took a strong objection to the “mischievous” and “misleading” scene. He had served a legal notice to the film’s producers and directors with a demand to seek unconditional apology. The producers of the film, Super Cassette Industries Private Limited and White Feather Private Limited, had admitted their mistake in filming the scene. They too had requested the CBFC to blur the scene as it sent a wrong message.
The movie which is loosely based on the life of gangster Ashwin Naik, also portrays Shiv Sena founder the late Balasaheb Thackeray in a bad light. In the controversial scene, a corrupt police officer is shown hand in glove with the criminals. He tells a fellow officer that he was a member of Bhauchi Sena (a depiction of Shiv Sena), where he learned all the bad things.The character of the officer says he is a regular at a shakha, a unit of Bhauchi Sena. However, when he shows his pictures at shakha, the viewers get to see RSS workers in uniform, carrying their danda and standing in a position to recite the Sangh prayer. The director of the film had mistakenly shown an RSS shakha as a Shiv Sena shakha which contemplates the same as a mistaken identity and admitted the mistake though he has yet no apologized for the same. The complainant condemned the act and said the legal battle will continue until the controversial scene is deleted and the makers issue an unconditional apology.
“What’s Going On? It Is Terrible…Shocking. It Is Distressing,” – Supreme Court Lambasted The Use Of Quashed Section 66A Of IT Act (Read Here)
Recently, in a plea by People’s Union for Civil Liberties (PUCL) for issuing suitable directives to the Union government and subordinate courts in the country to make sure cases are not registered under Section 66A, and nobody is arrested or prosecuted under this quashed law, the Apex Court headed by justice Rohinton F Nariman, lamented the use of the provision even after it has been struck down in 2015 and has been directed to publicise. PUCL contended that Section 66A has continued to be in use, not only within police stations but also in cases before trial courts. It further complained that the police were lodging FIRs under the provision, trial courts were also passing orders and people were being prosecuted.
Vishal Bhardwaj’s Show On IC 814 Hijacking Dropped By Streaming Platform
After Tandav backlash, a web-series on the hijacking of Indian Airlines flight IC 814 was dropped by a streaming platform. The director said that even after insisting that it’s a part of history and is not against our current government, the show couldn’t be taken forward.
Delhi High Court restrains broadcasting of “A Big Little Murder”, a documentary by Netflix, CNA
The broadcasting of the documentary “A Big Little Murder” which reportedly deals with the death of a student of a Gurugram school has been restrained by the Delhi High Court on Netflix and Channel News Asia in the case of St. Xavier’s Education Trust v. Mayurica Biswas, Media Corp digital Network and Netflix Entertainment services LLP.
Centre mulls single law to supervise all media
The Union Government is contemplating laws for all conventional and digital media firms in order to guarantee a degree taking part in discipline. The thought is to have an umbrella law that may cover print and digital media, digital media, cinema, over-the-top or OTT platforms comparable to Netflix and Hotstar. The law will cover aspects from the Cable Television Network Act, Cinematograph Act, Press Council Act, and the brand-new digital media pointers.
The I&B ministry has already amended the Cable Television Network Act and proposed draft amendments to the Cinematograph Act to guarantee they don’t seem to be at odds with the brand-new social media and middleman pointers and digital media code of ethics, which had been notified by the federal government below the Information Technology Act in February to convey hitherto unregulated digital platforms below a three-tier grievance redressal system.
Certain amendments have also been proposed to the Cinematograph Act, 1952, that may allow the introduction of a broader age-related classification, grant the central authorities the power to ask the CBFC to re-examine a movie, and curb piracy within the trade. The proposed amendments to the Act will introduce an age classification system akin to the one specified below the middleman and digital media pointers. They additionally grant the Central Government powers to ask the CBFC to re-examine a movie on the grounds of nationwide safety and menace to public order.
‘Uninstall Hotstar’ trends as it refuses grievance complaints against ‘The Empire’ series based on Babur
Soon after the trailer of ‘The Empire’ surfaced on the internet, fans started objecting to the Hotstar series as according to the fans the makers of the series had glorified the invader Babur in the said series. However, Hotstar rejected the grievance complaints against the series which resulted in the trend ‘Uninstall Hotstar’.
Kerala High Court directs the Centre to take action within four weeks on a complaint filed against the CBFC certification of an upcoming movie, ‘Marakkar’
A plea was filed by one of the descendants of Kunjali Marakkar against the CBFC certification of the upcoming Malayalam movie ‘Marakkar Arabikkidalinte Simham’. The said movie is based on the life of a naval chief of the Zamorin of Calicut and is said to be the most expensive Malayalam film ever made. The said plea sought a restraint on the release of the film on the ground that the film allegedly results in distortion of history. The plea also contended that the government or the district collector has the power to suspend the exhibition of the film as it is likely to cause breach of peace.
Also, the Central Board of Film Certification informed the petitioner that the said complaint has been forwarded to the concerned Ministry and added that the Centre has no role or right to interfere in this regard. However, the Kerala High Court directed the Union Government to take action as per the law within four weeks on this plea.
OTT, mobile content must be regulated
RSS chief, Mohan Bhagwat said “After the outbreak of the pandemic, nearly every child has a mobile phone and what they watch on their cellphones is not controlled”, at the function Mohan Bhagwat also spoke about increased consumption of drugs and cryptocurrency.
A complaint in Delhi and one in Mumbai have been filed against the Actor and Comedian, Vir Das, for his latest YouTube video. The complaint states that the comedian has wilfully incited and made derogatory comments against India, Indian women and the Prime Minister.
The video titled, “I come from two Indias” shows him delivering a monologue at Washington’s Kennedy Centre in USA. He spoke about several topical issues ranging from petrol prices to farmer’s protest to Government’s management of Covid.
Since the video was published, it has received mixed responses from the netizens on social media. Some have felt that his remarks have tarnished the image of the country at an international forum, while others stand in solidarity with him. Das has released a statement on his Twitter handle, justifying his video by calling it a satire.
The Central Government has submitted in the Delhi High Court that the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 [IT Rules, 2021] are only a medium to provide checks-and-balances for removal of unlawful content and they do not affect the freedom of speech and expression.
The Government expressed its concern regarding the availability of fake news and other misleading content available on the social media platform. They reiterated that the IT Rules do not endorse pre-censorship and will just act as a medium to control disruption public order due to transmission of fake news.
Delhi High Court upholds right to dissent while rejecting plea to stay publication of Salman Khurshid’s book
The Delhi High Court while dismissing a plea to stop the publication, circulation and sale of Congress leader Salman Khurshid’s new book held that free speech is not to be exercised only if it falls in line with the majoritarian view, and right to dissent is the essence of a vibrant democracy. Justice Yashwant Varma, who was dealing with the plea which claimed the book Sunrise Over Ayodhya: Nationhood In Our Times “impinges upon the faith of others”, said that rights guaranteed by the Constitution, including free speech, cannot be restricted or denied on perceived apprehension of being unpalatable, and a democracy governed by the rule of law would be placed in serious peril if creative voices were stifled or intellectual freedom is suppressed. The freedom to freely express ideas and opinions cannot be permitted to be overshadowed by the ominous cloud of being non-conformist,” the court said in its order passed on November 25.
Centre to consider nodal officers to regulate social media content
The government might be instituting ministry-level nodal officers to order content takedowns. An inter-ministerial review underway for the formulation of the Standard Operating Procedures on the IT Rules 2021 is considering a proposal to have nodal officers as each ministry has expertise in what constitutes unlawful content. The government has been working on the standard operating procedure (SOP), which it is supposed to outline as part of the IT Rules, 2021.
No case has gone to Tier 3 for Digital Media Ethics Code violation: Justice Sikri
Publishers of online curated content have successfully implemented the three-tiered redressal mechanism for addressing grievances regarding violations of the Digital Media Code of Ethics as set forth by the IT Rules 2021, said former Supreme Court justice Arjan Kumar Sikri. “No case has gone to tier-3 so far for Digital Media Ethics Code violation,” he noted while addressing the Pixels conference organized by IAMAI. Justice Sikri chairs IAMAI’s grievance redressal board formed as a part of the DPCGC.
Atrocious’: Kerala High Court Admits Plea Against ‘Churuli’ Movie For Excessive Use Of Abusive Language
The Kerala High Court recently admitted a writ petition filed against the Malayalam movie ‘Churuli’ which was recently released on an OTT platform for excessive use of abusive and obscene language.
After a portion of the said movie was played in the courtroom, Justice N. Nagaresh issued notice to all the respondents and orally remarked that the dialogues used in the movie were ‘atrocious in nature’. “Even though the movie Churuli is capable of invoking a sense of curiosity and mystery in the minds of the audience, there is an overdose of foul language. It contains obscene and filthy language which are opposed to public morality and tranquillity”, the plea had said.
The primary concern of the petitioner is that films as a form of art influence common people of the society. It is common among people to imitate dialogues from movies and if this is the case with the impugned movie, it will affect the public. The mystery-horror film Churuli was released on Sony LIV, a public OTT platform, on November 19th 2021.The petitioner pointed out that since the outbreak of the pandemic and the resultant shutdown of theatres, most families now have subscribed to OTT platforms. This implies that children and teenagers also have access to the content therein.
Interestingly, Censor Board had earlier taken the stance that the version released on the OTT platform was not the copy certified by the Board.
An ex-judicial officer might be summoned by Kerala High Court over a Facebook post
The Kerala High Court might issue summons to an ex-judicial for enforcement of his personal appearance for a matter pertaining to certain Facebook posts made by him, if the post proves to be authentic. The issue arose when the officer made certain negative remarks about the Court on his Facebook post regarding a case that was being handled by the Court. The Kerala High Court delved into the effects of social media and how it being a powerful tool, can still be used maliciously by some people. This action of the Court of pursuing the complaint against the impugned post has proved to be an exception as establishment of a valid connection between the post and the case can prove to be an obstruction to administration of justice.
The interim order dated 17th December, 2021 can be accessed here.
Family Man 2 Controversy
The Family Man 2 is facing the ire of Naam Tamilar Katchi (NTK) chief Seeman, who has called for a ban on the web series “Family Man 2”, which is slated to stream on Amazon Prime Video on June 4. NTK party leader Seeman released a statement on Twitter condemning the makers and accused them of not having the right intentions since LTTE is being portrayed as terrorists and having links with ISI.
The web series has been in controversy since the launch of the trailer of its Season 2. A section of the society has taken to social media to accuse the web-series for depicting the South Indian state of Tamil Nadu in a bad light. They have denounced the series as ‘anti-Tamil’.
Bombay High Court refuses to stay release of film ‘Mumbai Saga’
The Bombay High Court on 18th March, 2021 refused to stay release of the film ‘Mumbai Saga’ which is allegedly based on lives of gangsters, Ravi Mallesh Bohra, known in Mumbai’s underworld as DK Rao, late Amar Naik and his brother Ashwin. DK Rao and family members of Amar Naik had moved to the Bombay High Court for the stay of the release of the movie, which is scheduled to be released on March 19. Relying on various newspaper reports they contended that the movie depicts their lives, consequently violating their right to privacy. However, the Bombay High Court has refused to grant stay on the release on the ground that they had moved the court at the eleventh hour.
High Court Asks Bollywood Producers To Reply On Bennett Coleman’s Plea To Reject Defamation Suit
In the fresh application, the Bennett Coleman and Company Ltd (Times group) has raised the issue of jurisdiction and claimed that the Delhi High Court has no territorial jurisdiction to entertain the lawsuit filed against it by 34 leading producers, including those owned by Aamir Khan, Shahrukh Khan, Salman Khan, Karan Johar, Ajay Devgn, Anil Kapoor, Rohit Shetty, Yash Raj Films and R S Entertainment. The Delhi High Court sought response of leading Bollywood producers to file a reply within 3 weeks on this application by Bennett Coleman and Company Ltd seeking rejection of the lawsuit filed by them against the media house and others in which leading producers have sought to restrain them from making irresponsible remarks and has also sought that the channels be restrained from interfering with the right to privacy of persons associated with the industry. The matter is listed for further hearing on 23rd March 2021.
PIL Filed To Remove Amitabh Bachchan’s Voice Caller Tune On Covid-19 Awareness
A public interest litigation (PIL) has been filed before the Delhi High Court for removal of mobile caller tune on Covid-19 awareness in the voice of actor Amitabh Bachchan. The matter is scheduled for next hearing on 18th January 2021.
Bombay High Court Restrains Amazon Prime From Exhibiting The Telugu Film ‘V’ With Images Of Sakshi Malik
In a defamation suit filed by model and actor Sakshi Malik against Venkateshwara Creations, Amazon Prime and other, the Bombay High Court vide order dated March 2, 2021 restrained Amazon Prime from telecasting the Telugu film “V” in all versions, irrespective of language and sub-titles, until such time as the 1st and 2nd Defendants have completely deleted all images of the Plaintiff from their Film. Justice Patel remarked “It is not acceptable for them to merely pixelate or blur the images. The entire sequence which has the image of the Plaintiff is to be removed immediately”
The Plaintiff objected the usage of the image and cited that it was wholly unauthorized invasion of privacy and unauthorized use of private material and further that the usage was defamatory in nature as the image has been unauthorizedly used to depict her in the motion picture as an escort or commercial sex worker. The Plaintiff thus sought damages for defamation and for a permanent injunction.
Justice Patel remarked “any right-thinking motion picture producer would have insisted on seeing an approval or consent by the model or person who is featured or to be featured. It would be standard procedure, and this would be true whether the issue is one of copyright in the photograph or of use with permission of an image of the model in question for a particular sequence. It is self-evident that it is not possible to use the image of any person for a commercial purpose without express written consent. If images are to be used without such express consent, they must be covered by some sort of legally enforceable and tenable licensing regime, whether with or without royalty”
Right to Privacy cannot be inherited after death: Madras High Court
The Madras High Court while dismissing Jayalalitha’s niece, J Deepa plea against the release of biopics on late former Chief Minister of Tamil Nadu, J. Jayalalitha, including ‘Queen’ and ‘Thalaivi’ ruled that right to privacy of a deceased person cannot be inherited.
This appeal was instituted by J Deepa before the Division Bench after a single Judge in December, 2019 dismissed her plea. In the appeal, J Deepa claimed that if a biopic is made without her consent it may also infringe her own right to privacy. She further contended that the single Judge had erred in appreciating her as “Class 1 legal heir” of J. Jayalalitha and was entitled to protect the dignity, legacy and “posthumous right to privacy” of her aunt and former Chief Minister of Tamil Nadu, J. Jayalalitha.
The bench disagreed with J Deepa’s argument. The bench while relying on Managing Director, Makkal Tholai Thodarpu Kuzhumam Limited v. Mrs. V. Muthulakshmi and Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair observed that the “right of privacy of an individual”, extinguishes with his or her death and cannot be inherited by a person’s legal heir after his or her death.
Read judgement here.
Plea Seeking Injunction On Movies Based On The Life Of Late Actor Sushant Singh Rajput
Krishna Kishore Singh, the father of late actor Sushant Singh Rajput had approached the Delhi High Court and filed a petition on the basis of various news articles and publications which said that his personal life, name/likeness/ lifestyle/caricature/images will be depicted in various movies and other ventures in the form of a biopic or story. The petition stated that the plaintiff as well as his deceased son has the right to privacy or of the right to be left alone as enshrined under Article 21 of the Constitution of India. It further stated that no one can publish anything whether truthful or not about the life of the deceased actor without the consent of the plaintiff. The petition also sought permanent injunction restraining the defendants, the makers of the movie ‘Shashank’ from using the plaintiff son’s name or likeness in any forthcoming projects. The Court in its observation did not find any elements that would lead the general public to believe the movie to be based on a true story or to be a biopic based on the life of Sushant Singh Rajput and stated that once the disclaimer is included at the beginning of the cinematograph film, all of Krishna Kishore Singh’s claims with respect to the film being a biopic based on his son’s life will be put to rest. The Court held that irreparable loss will be caused to the Defendant if the film is restrained at this stage and if the plaintiff’s suit does not succeed ultimately. It further observed that in case there is any change in circumstances after the release of the said film, Krishna Kishore Singh can re-apply for injunction and compensatory damages. The Court directed the Defendants to render complete and true accounts of the revenue earned from the films by way of sale/licensing of all rights relating to the films.
Delhi High Court upholds the “Right to be Forgotten & Right to Privacy” while granting relief to a Bengali Actress
A Bengali Actress sought restraint before the Delhi High Court on publication and streaming of her naked videos on various online platforms like YouTube. The Court while giving an interim relief to the actress said that the actress was entitled to the right of privacy from invasion by strangers and also cited the right to be forgotten. While doing so, the Court ordered these online platforms to pull down the said videos.
Further, the Court while citing an earlier decision of the Delhi High Court observed that the “right to privacy” includes under its ambit the right to be left alone and the right to be forgotten. It also said that the right to be forgotten is an inherent aspect of the right to privacy.
Read order here.
Karnataka High Court restrains Netflix from streaming first episode of web series ‘Crime Stories: India Detectives’
The Karnataka High Court directed OTT platform, Netflix, to block the streaming of the first episode of web series Crime Stories: India Detectives.
Justice BM Shyam Prasad ordered that the pilot episode titled “A Murdered Mother” should not be streamed since it could cause harassment and prejudice to the petitioner, a murder accused. The Court was hearing a petition moved by one Sridhar Rao, a 28-year-old resident of Bengaluru, a co-accused in the murder of 54-year-old Nirmala Chandrashekar. Amrutha Chandrashekar, the daughter of the deceased lady, is the other accused in the case. It was alleged that Amrutha had killed her mother and attempted to kill her brother, and later fled to Andaman and Nicobar with the petitioner.
It was the petitioner’s case that the first episode in the series contained the visuals of the investigation by the police in the first information report (FIR) against himself and Amrutha. The petitioner contended that the contents of the first episode would interfere with the petitioner’s defence as it contains interview recorded during the investigation and video recording of a purported confession.
The petitioner’s right to a free and fair trial would be severely prejudiced if the episode it streamed, it was submitted. This apart, it was also contended that the episode violates the petitioner’s privacy and the content, without any justification, exposes the petitioner to ridicule and harassment by the public. On these grounds, the petitioner filed a suit against the respondents along with an application for temporary injunction. The civil court had not granted interim injunction whereupon the petitioner moved the High Court.
The court also issued notice to Netflix and the producer Minnow Films while posting the case for further hearing on October 21.
PIL filed in Delhi High Court alleging that Dulquer Salman starrer ‘Kurup’ violates right to privacy of proclaimed offender Sukumara Kuru
A public interest litigation (PIL) petition has been filed before the Kerala High Court against the film “Kurup“, which is said to be based on the life of a proclaimed offender, and “India’s longest wanted fugitive”, Sukumara Kurup [Sebin Thomas v Union of India & Ors.].
A Division Bench that comprises Chief Justice S Manikumar and Justice Shaji P Chaly admitted the plea on November 10 and issued notice to the respondents- the producers, the central and Kerala state government, and National Central Bureaus (NCBs) Interpol in the matter. According to advocate Sebin Thomas, who filed the PIL on November 8, the State being the custodian of the properties of Kurup is duty-bound to protect his right to privacy. This is in light of the fact that since he is a proclaimed offender, all his movable and immovable properties are vested with the State.
Thomas added that the publication of the film portrayed Kurup’s personal life with ingredients of fiction that could be detrimental to the fugitive, or may even deny him justice before a court of law. The plea also discussed pre-trial incarceration needs justification depending upon the nature of offences, criminal history, terms of the sentence prescribed in the statute for such crime, probability of the accused fleeing from justice, hampering the investigation, and manipulating the victims and witnesses.
Bombay High Court restrains sale of autobiography of former Chairperson of Raymond- Vijaypat Singhania
A petition was filed before the Bombay High Court under Article 226 and 227 of the Constitution of India against Singhania, Macmillan Publishers India Private Limited and Amazon India Limited. The said petition was filed by Raymond Limited, headed by Singhania’s son, Gautam Singhania. It was alleged in the petition that the autobiography was “surreptitiously” released on November 01 although there was an injunction on its release. While hearing the petition, the Hon’ble Court restrained the sale and distribution of the autobiography of former Chairperson of Raymond- Vijaypat Singhania.
Read order here.
Right To Be Forgotten – Courts Can’t Direct Redaction Of Names Of Acquitted Persons From Records In Absence Of Statutory Backing: Madras HC
The Madras High Court has refused to redact the name of a person from court records, who was acquitted of all criminal charges levelled against him, while stating that there is no law in India that contemplates such a request.
The order has come in a plea wherein a man earlier accused of offences under Sections 417 (cheating) and 376 (rape) of the Indian Penal Code (IPC) was subsequently acquitted of all charges. He moved the High Court to redact his name from the Court’s judgment.
The petitioner had contended that although he was acquitted of all charges, anybody who types his name in Google search unfortunately will be able to access the concerned judgement wherein he has been labelled as an accused. This causes a serious impediment to his reputation and accordingly he sought the Court’s leave to redact his name from the concerned judgement.
The court observed that the administration of justice is a task carried out in public interest. Hence, “right to be forgOTTen” cannot exist in the sphere of administration of justice particularly in the context of judgments delivered by Courts. The only exception, is in cases of victims of rape and other sexual offences where the Supreme Court itself has directed that the identity of victims cannot be disclosed.
Justice N. Anand Venkatesh then added that “In the absence of any statutory backing this Court cannot undertake the exercise of issuing directions when no judicially manageable standards exist in the first place. There must be a proper policy formulated in this regard by means of specific rules”.
He further noted that “It will be more appropriate to await the enactment of the Data Protection Act and Rules thereunder, which may provide an objective criterion while dealing with the plea of redaction of names of accused persons who are acquitted from criminal proceedings. If such uniform standards are not followed across the country, the constitutional courts will be riding an unruly horse which will prove to be counterproductive to the existing system.”
Read order here.
Delhi Court restrains publishing company from selling, distributing book on Rana Kapoor
A Delhi court has restrained publishing company, Penguin Random House, from selling and distributing a book on former Yes Bank CEO Rana Kapoor, titled “The Banker Who Crushed His Diamonds: The YES Bank Story”, until the next date of hearing in the matter. Additional District Judge Rajesh Kumar also restrained Almighty Tech Films from releasing and marketing any film that has a direct or indirect relation or reference to Kapoor without his prior consent.
Metropolitan Magistrate Court Issues Bailable Warrant Of Rs. 1,000 Against Kangana Ranaut In Javed Akhtar Case
A Metropolitan Court of Bombay has issued a bailable warrant of Rs. 1,000 against actress Kangana Ranaut in the defamation complaint registered by the famous Bollywood lyricist Javed Akhtar. The warrant was issued because the actor failed to appear before the Court. Although Akhtar’s lawyer sought that a non-bailable warrant should be issued against the actor, however, the magistrate said, “However, keeping in view the nature of the litigation, it appears to me a harsh step.”
Gangubai Kathiawadi: Bombay High Court stays defamation proceedings against producers, authors and actor
The Bombay High Court continued the stay on summons issued by a Mumbai Court in a criminal defamation complaint against the producers, actress and author of the film Gangubai Kathiawadi.
Earlier, summons were issued against Alia Bhatt, Sanjay Leela Bhansali and his production house in connection to the complaint filed by one Babuji Shah, who claims to be the adopted son of Gangubai Kathiawadi. Shah had alleged that the film was inspired by the novel ‘The Mafia Queens of Mumbai’ by Hussain Zaidi. He also alleged that some sections of the novel were defamatory and tarnished his mother’s reputation while infringing upon her right to privacy.
Another High Court bench refused to grant a stay on the release of the film. Shah had moved the Court, seeking a stay on the release of the movie, and an order restraining the writers/publishers of the novel from creating any third-party rights or writing anything about Gangubai Kathiawadi.
Bombay High Court Restrains Kamal R Khan from Making Defamatory Statements Against Producer Vashu Bhagnani
The Bombay High Court restrained ‘film critique’ Kamal K Khan from making defamatory statements or videos on social media platforms against Bollywood producer Vashu Bhagnani till a final order is passed on the latter’s Rs. 1 crore defamation suit. The single bench of Justice AK Menon, passed the interim order on a suit filed by Bhagnani, against a series of tweets and a video by Khan, making numerous allegations against the producer and his family.
The applicant claimed that he has built his reputation “brick-by-brick” by making several critically acclaimed movies since 1995. He alleged that it is Khan’s modus operandi to target big banner films at the time of their release and make cheap publicity. He alleged that Khan was running a “well-orchestrated smear campaign” against him making distasteful comments about his family members. He alleged that these statements have created an impression among the general public that the Applicant is a shameful and a vile person and these untrue mutations has caused great harm to the reputation of the applicant. The respondent was asked to point out that how would his several statements made on Twitter would be limited to just ‘film criticism’. On failure to prove the aforementioned Justice Menon granted the applicant the interim relief sought. The court passed a similar order against the respondent in a similar matter against actor-producer Nikhil Dwivedi.
Bombay High Court seeks reply by Salman Khan on Kamaal Khan’s plea for quashing a lower court’s order
The self-proclaimed film critic Kamaal R Khan filed a plea in Bombay High Court for quashing of a lower court’s interim order restraining him from making any comments on Salman Khan, his movies or his companies. The said order was passed in June this year in a defamation case filed by Salman Khan against Kamaal R Khan over his comments on the movie Radhe and various other videos and commentaries. Kamaal R Khan, in his plea said that a film viewer cannot be prevented from giving his opinion or making comments about a film or the characters used in the film. He further added that this order is no less than a ‘gag order’ and the Court could restrain him from making personal comments on the actor but not on fair criticism of the movie. On September 16, 2021, a single bench of the Bombay High Court issued notices to Salman Khan, his production company, Salman Khan ventures, and several social media intermediaries seeking their response to this plea.
Criminal complaint filed against Javed Akhtar
The complaint is against Javed Akhtar’s statement linking RSS to Taliban. Joshi, the Mumbai lawyer, heard Akhtar on a talk show and felt that the alleged statements were meant to defame and vilify the Hindu community. Joshi’s statement read, “Statements made by the accused is well planned, thought and calculated defamatory statements to defame RSS and discourage, disparage and misguide the people who have joined RSS or who would like to join the RSS and belittle the RSS in the eyes of common public. There was a well-planned motive of the accused to defame RSS.” Joshi has even prayed for investigation for offences of defamation which are punishable under the IPC Sections 499 and 500. The complaint will be heard on October 30.
RSS-Taliban Comment: RSS Volunteer Files Defamation Suit For ₹1 Against Javed Akhtar in Thane Court
A Thane Court, in Maharashtra, has issued a show-cause notice to lyricist Javed Akhtar in a defamation suit filed against him seeking Re 1 in damages over his interview drawing parallels between nationalist RSS organisation and terror outfit Taliban.
Additional Chief Judicial Magistrate passed the order in the suit filed by one Vivek Champanerkar seeking symbolic compensation and a permanent injunction against Akhtar from statements against the RSS. The notice is returnable on November 12.
The suit is filed under Sections 38 and 40 of the Specific Relief Act. The show-cause notice is issued under Order V of the Civil Procedure Code. The 76-year-old poet, lyricist and screenwriter triggered a controversy early this month when he told NDTV that extremist organisations all over the country have an uncanny similarity, drawing parallels between RSS and the Taliban.
In a similar situation, recently the lyricist had accused actress Kangana Ranaut of defamation for damaging his “immaculate reputation” by dragging his name in actor Sushant Singh Rajput’s death in her interview with Republic TV Anchor Arnab Goswami. In that case, currently the actress had filed a plea to transfer the defamation case filed by lyricist Javed Akhtar against her, as she had lost faith in the court.
Mumbai Court warns Kangana Ranaut that in case of non-appearance on the next hearing, an arrest warrant will be issued against her (Defamation)
The Andheri Metropolitan Magistrate RR Khan, on September 14, 2021, reprimanded Bollywood actress Kanagana Ranaut for failure to appear before it in the criminal defamation case filed against her by lyricist Javed Akhtar. Further, the Court said that in case of non-appearance by the actress on the next hearing, an arrest warrant will be issued against her.
Can’t Transfer Cases Based on False Allegations, Will Affect Judge’s Morale: Mumbai Court In Order Refusing Kangana Ranaut Relief in Javed Akhtar’s Defamation case
In the continuing tussle between writer Javed Akhtar and actor Kangana Ranaut, the Chief Metropolitan Magistrates court at Mumbai recently denied Kangana’s application to transfer the matter. Merely because a judge proceeds with a case by following the law, doesn’t mean he is biased against the accused, the Chief Metropolitan Magistrate observed. while rejecting actor Kangana Ranaut’s plea to transfer the defamation case filed by Javed Akhtar out of the 10th Andheri court.
Ranaut had approached the CMM court alleging that the Magistrate in Andheri had intentionally hurt her reputation by announcing in open court that he would issue an arrest warrant if she didn’t turn up in court to record her plea.
Addl CMM ST Dande ud that Magistrate RR Khan had acted judiciously and in fact allowed all of Ranaut’s exemption applications, repeatedly rejecting Akhtar’s pleas for issuance of a non bailable warrant when she failed to appear. “If on the basis of false allegation, the matter is transferred, it will affect the morale of Presiding Officer,” the court said. The court said that Metropolitan Magistrate, 10th Court, Andheri, Mumbai, had given Kangana a fair opportunity after she remained absent.
Read order here.
Shilpa Shetty & Raj Kundra send Rs 50 Crore Defamation Notice to Sherlyn Chopra
Actor Shilpa Shetty and her husband Raj Kundra have sent a defamation notice to actor Sherlyn Chopra seeking an apology and Rs. 50 crore in damages for “lewd, below the belt” remarks against them on public platforms.
The notice claims that the Chopra’s allegations against Kundra and Shetty are “concocted, false, frivolous and baseless, made with an ulterior motive to defame and extort money” and punishable under sections 499, 550, 389 and 195(A), of the Indian Penal Code.
Kundra and Chopra are both accused in obscenity cases being investigated by the Maharashtra Police. Kundra was recently granted bail in one of the three cases.
The notice states that this is Chopra’s attempt to absolve herself from the investigation against her. The notice comes after allegations of sexual misconduct were recently levelled by Chopra against Kundra in an FIR regarding an incident from March 2021
India Today seeks Rs. 2 crore in damages from Newslaundry for copyright violation and defamation
A month ago Newslaundry had claimed that YouTube froze its channel after the India Today group had reported it multiple times for copyright violation.
Aggrieved by Newslaundry’s actions, India Today group filed a copyright violation and defamation case against Newslaundry seeking damages to the tune of Rs. 2 crore.
Additionally, India Today also named a freelance journalist (Hridayesh Joshi) in their suit. Newslaundry has taken the responsibility to represent the freelance journalist.
Copy of the suit filed by India Today can be found here.
“No Ill-Will Against Lawyers”: Rajasthan High Court Dismisses Defamation Complaint Against Akshay Kumar Concerning ‘Jolly LLB 2
The Rajasthan High Court dismissed a criminal complaint for defamation filed in the year 2017 against Actor Akshay Kumar concerning the movie – Jolly LLB 2.
The Bench of Justice Satish Kumar Sharma also quashed the order of Additional Chief Metropolitan Magistrate, Jaipur Metropolitan Sanganer taking cognizance under Section 500 IPC against Akshay Kumar on the basis of the trailer of the film Jolly LLB 2.
A criminal complaint for Defamation had been filed on the basis of the trailer of the film Jolly LLB 2, alleging that some scenes of the film were against the Lawyers’ community.
The Counsel for Akshay Kumar submitted before the Court that the entire film Jolly LLB 2 was scrutinized by the Bombay High Court (Aurangabad Bench) in a PIL, and in compliance with its order, some scenes were deleted, and thereafter a necessary certificate was issued by the Central Board of Films Certification (hereinafter CBFC’).
It was further submitted that in the past four years, there had been no objection from any section of the Society against the film so released after the certification.
It was argued that the trailer was also approved by the CBFC and the presumption was in favor of the film so released after due certification by the CBFC that the same had no content of defamation against anyone.
Lastly, referring to the order of taking Cognizance, the Counsel submitted that the impugned order of cognizance was violative of fundamental rights of freedom of speech and expression as guaranteed under Article 19(1)(a) and 19(1)(g) of the Constitution of India.
Read order here.
Convicted journalist denied relief by the Supreme Court for his defamatory articles against a lawyer
The Bench comprising of CJI NV Ramana, Justice Surya Kant and Justice Hima Kohli refused to entertain a special leave petition filed by a journalist, convicted through an order granted by the Karnataka High Court.The case comprises of a complaint made by the lawyer against the journalist under Section 501 of the IPC. The complaint alleged that the accused who was the Editor, Printer and Publisher of a Kannada weekly newspaper, ‘Tunga Varthe’ published several articles, making baseless remarks against the complainant with the intention to harm his reputation. The Bench reprimanded the journalist for the language used by him in his articles and upheld the High Court’s decision of holding the articles as extremely offensive and a clear attack on the reputation and character of a person.
The order dated 17th December, 2021 can be accessed here.
Madras High Court dismisses police officer’s plea to quash MS Dhoni’s defamation suit
The Madras High Court dismissed IPS officer G Sampath Kumar’s plea seeking quashing of the defamation proceedings initiated against him by cricketer MS Dhoni. Justice N Seshasayee observed that any order at this stage would certainly affect the progress of the main case pending since 2014 and dismissed Kumar’s plea. Basically, Dhoni had filed a defamation suit from a TV media firm and others for allegedly circulating malicious news that he was involved in betting, spot and match-fixing. IPL match in 2014.
He sought restraining of the defendants, including Kumar, who had initially probed the IPL betting scam, to issue and publish the statements. The court had granted an interim injunction earlier to restrain the defendants from doing so. Aggrieved, the petitioner challenged the defamation suit in 2014. In his additional counter-affidavit filed recently, he argued that the suit was to silence him. This was the reason behind filing the suit here in the Madras High Court, while none of the other three defendants to the trial were in Tamil Nadu.
Consumer Court Penalizes Brand Ambassador For False Claim: No Hair Growth As Promised In Advertisement
The District Consumer Redressal Forum, Thrissur, ordered the manufacturers of ‘Dhathri Hair Cream’ and film actor Anoop Menon, the celebrity who endorsed the product in an advertisement, to pay compensation of Rs 10,000 each to a consumer for making “false promises” by the advertisement in which Anoop Menon promised that the use of the product for six weeks will assure lush hair growth. The Court also observed that the precautions mentioned in the brochure along with the product are printed in such a way that it is not even visible even when looked at with the help of a magnifying glass.
Bombay High Court States TV Ads Promoting Magical Properties And Superstitions Are Illegal Under Black Magic Act
The Bombay High Court passed an order stating that telecast of advertisements by TV channels claiming to have special, miraculous or supernatural properties is illegal. The television channel airing such ads will be liable under the provisions of the Maharashtra Prevention and Eradication of Human Sacrifice and other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013.
Advertising Industry Regulator ASCI To Set Up Task Force For Monitoring OTT Ads
As per reports, the Advertising Standards Council of India [ASCI] is setting up a task force to monitor and regulate advertising on over-the-top (OTT) streaming platforms, at a time when OTT platforms such as Amazon and Netflix are exploring advertising revenue options to move beyond subscription-only models, while others such as Zee5, Disney+Hotstar, Sony Liv and Voot, which are already large platforms for advertising, continue to increase their user bases.
MIB Asks TV Channels To Desist From Promoting Superstition
MIB has issued an advisory to TV channels directing them against airing programmes that promote blind belief and superstition. The ministry has advised TV channels to abide by the Rule 6(1)(j) of programme code and Rule 7(5) of Advertising Code of the Cable Television Networks Rules, 1994.
Advertising Standard Council Of India’s New Guidelines For Social Media Influencers
ASCI recently issued new draft guidelines for social media influencers according to which, any kind of promotional post or collaboration with a brand is supposed to be specified and disclosed as such by the influencer. These guidelines will be applicable to all promotional posts published on or after 15th April 2021. These comprehensive guidelines cover all kind of posts from snapchat stories, to Instagram posts, YouTube content, etc. If an influencer fails to follow the guidelines, legal action can be taken against them as per the Consumer Protection Act, 2019 and the ASCI will issue a notice to both brand owner and influencer for violation of any guideline in the case of a consumer complaint or it will take a suo motu cognisance of a potentially objectionable advertisement.
ASCI Issues Final Guidelines For Influencer Advertising On Digital Media
The Advertising Standards Council of India (ASCI) on May 28, 2021 unveiled the final guidelines for influencer advertising on digital media. The draft guidelines initially were issued in February and feedback from all stakeholders – advertisers, agencies, influencers and consumers – was sought. The guidelines will be applicable to commercial messages or advertisements published on or after June 14, 2021.
ASCI has identified a French technology provider, Reech. “The Reech Influence Cloud platform uses Artificial Intelligence to identify lack of disclosure on posts of a commercial nature on social media. Machine learning algorithms and pattern searching Regex (Regular Expression) maximize accuracy. As part of ASCI’s increasing focus on digital content, we will continue to deploy advanced technology solutions to keep track of advertisements that violate the ASCI code,” Manisha Kapoor, secretary general, ASCI said.
ASCI is launching the ASCI.Social platform, a one-stop destination for all information related to the guidelines themselves. The digital platform will be interactive with dos and don’ts, FAQs, information related to the guidelines, among others.
ASCI dismisses advertisement plagiarism complaint by Amul
A complaint was lodged by Amul Macho alleging that the Lux Cozi advertisement starring Varun Dhawan was a ‘complete copy’ of Amul’s advertisement released in 2007. Amul sought immediate action against Lux on the grounds that the advertisement unfairly took advantage of the brand equity, reputation and goodwill generated by Amul Macho brand.
In response, Lux contended that the complaint seemed to have been initiated with an intention to malign Lux’s reputation in the eyes of public and waste the time of the Consumer Complaints Council (CCC), adjudicatory body of the ASCI. It also pointed out a list of dissimilarities to show how the concept, theme and expression of both advertisements were in complete contrast to each other and hence, there can be no scope of similarity whatsoever.
Lux also informed the CCC that Amul’s advertisement had been a subject of controversy soon after it was released in 2007 on account of its “objectionable and indecent content”, and was banned by the Ministry of Information & Broadcast across all mediums.
Observing that both advertisements barely had any similarities between them, the CCC held that Lux’s advertisement was not in contravention of the ASCI code and rejected Amul’s complaint.
Piyush Goyal said that he has no information about ASCI to form task force for monitoring and regulating ads on OTT
Piyush Goyal, Minister of Consumer Affairs, Food, and Public Distribution recently said that he has no information that the Advertising Standards Council of India (ASCI) is setting up a task force for the monitoring and regulating of ads on OTT platforms. This was said by the hon’ble minister while responding to a question rose in Lok Sabha. Further, the minister denied that the Ministry of Consumer Affairs, Food, and Public Distribution is working with the Ministry of Information and Technology to shape guidelines and processes to examine advertising on OTT platforms.
ASCI in talks with Centre to refresh crypto ad guidelines
The Advertising Standards Council of India (ASCI) is in discussions with the government to refresh guidelines related to cryptocurrency advertising, to include adequate disclosure of risk, ensuring that consumers don’t mistake crypto products to be legal tender and are not misled by exaggerated claims or by unfair comparisons with regulated asset classes.
ASCI, FSSAI collaborate to curb misleading claims in foods & beverages ads
The Advertising Standards Council of India (ASCI) has signed an agreement with the Food Safety and Standards Authority of India (FSSAI) to safeguard consumers against misleading claims in food and beverage (F&B) ads. ASCI will identify ads which violate provisions of Food Safety And Standards (Advertising And Claims) Regulations and FSSAI would further investigate these. Under the agreement, ASCI will set up a three-member expert panel to evaluate foods and and beverages advertising identified by the ASCI monitoring team.
SPORTS AND GAMING
Online Rummy: Kerala High Court Serves Notice To Virat Kohli, Tamannaah, Aju Varghese
The Kerala High Court served notice to cricketer Virat Kohli, actors Tamannaah Bhatia and Aju Varghese over a plea against online rummy. The petitioner pointed out that the actors/brand ambassadors have played a major role to attract more people to this online game. Petitioner claimed that Kerala has identified playing rummy as an offence under the Kerala Gaming Act in 1960. But the government did not initiate further action to execute it. Hence, the petitioner requested that court should take immediate action to ban online rummy legally.
Kerala High Court Refuses Stay On Kerala Government Notification Banning Online Rummy For Stakes
The Kerala HC refused stay on the State Government’s notification of banning online rummy for stakes. The challenge was made by 3 gaming companies namely: Play Games 24×7, Junglee Game and Gameskraft. The single judge bench showcased aversion to interfere with the notification and instead listen the matter after vacation thereby not granting interim relief to the gaming companies to their dismay.
The applicants challenged the notification on the grounds that it is ultra vires Section 14A of the Kerala Gaming Act, 1960 as it seeks to regulate the online space despite the legislation’s regulation of physical premises only.
The petitioners also contend that the Notification effectively seeks to ban businesses offering the game of Online Rummy, which is violative of Article 19(1)(g) of the Constitution of India, as it is a protected business under the aforementioned.
The gaming companies further cited various cases in support of their arguments including the Supreme Court’s verdict in State of Andhra Pradesh v. K Satyanarayan where it was an accepted proposition that Rummy is a game of Skill and the same should be accepted under the Kerala Gaming Act.
They further argued that removal of exemption for online rummy cannot be done through an executive notification but had to be done through an amendment to the Act itself. Similar amendment was incorporated in the Kerala Gaming Act, 1960 to incorporate online lOTTery within its fold.
Whereas the State stood firm on its ground and contended that playing online rummy for stakes is covered by 2019 Division Bench judgment of the High Court in Play Games 24×7 Pvt. Ltd & Ors. v. Ramachandran K. Accordingly the court’s attention was drawn towards the onservation made in that order that playing rummy for stakes can fall within the mischief of the Kerala Gaming Act, 1960.
Supreme Court Upholds Dream11 Online Fantasy Sports Format As ‘Game Of Skill’
On hearing a petition questioning the nature of business of fantasy cricket operators Dream11, the SC has once again reaffirmed the judgements passed by the Punjab & Haryana High Court and the Bombay High Court, and has upheld the judgment passed by Rajasthan High Court, where the legality of the online fantasy sports format as offered by Dream11 as a ‘Game of Skill’ was sustained.
The debate whether fantasy cricket is a matter of skill or chance was lingering for over two years. Courts had contemptuously dismissed a slew of petitions in favour of Dream11. The Real Money Gaming platforms like Dream11, MPL, Games 24×7 have insisted that online games like cricket, rummy, poker (and now ludo) overwhelmingly require skill and the chance element is negligible.
The hearing came in the wake of a SLP filed by Avinash Mehrotra challenging the Rajasthan High Court Division Bench judgement in February 2020 that gave Dream11 a clean chit, saying that fantasy cricket is a game of skill and there was no question of betting or gambling.
The Bench of Justices Rohinton Nariman and B.R. Gavai said the issue was not res integra (unique) and had been the subject of several judgments. SLP’s have come up from the Punjab & Haryana High Court and the Bombay High Court, both of which were dismissed.
The SC reaffirmed the judgement of Rajasthan HC which held that games like Dream 11 involves “substantial skills” and is a “business activity” protected under the fundamental right to practice trade or any profession under Article 19(1)(g) of the Constitution.
Read order here.
Rummy & Poker Are Games Of Skills: Madras High Court While Striking Down Online Gaming Ban
The Madras High Court struck down the Tamil Nadu Gaming and Police Laws (Amendment) Act, 2021 which imposes a ban on playing of games such as rummy and poker on cyberspace with stakes. Section 11 of the impugned legislation also banned games of ‘mere skill’ if such games are played for wager, bet, stake, or even money.
A Bench comprising Chief Justice Sanjib Banerjee and Justice Senthikumar Ramamoorthy was adjudicating upon a batch of petitions filed by gaming companies who offer access to card games like rummy and also poker on virtual platforms.
The petitioners had contended that the impugned legislation by prohibiting even games of skills, if played for any prize, violates Article 19(1)(g) of the Constitution (right to practise any profession or to carry on any occupation, trade or business). Reliance was also placed on the Madras High Court judgement in Dr.K.R.Lakshmanan v. State of Tamil Nadu wherein it was held that a game of skill may necessarily involve an element of chance, but the success therein would depend “principally upon the superior knowledge, training, attention, experience and adroitness of the player.”
The bench through its order conveyed that “There appears to be a little doubt that both rummy and poker are games of skill as they involve considerable memory, working out of percentages, the ability to follow the cards on the table and constantly adjust to the changing possibilities of the unseen cards. Poker may not have been recognised in any previous judgment in this country to be a game of skill, but the evidence in such regard as apparent from the American case even convinced the Law Commission to accept the poker as a game of skill in its 276th Report”.
Furthermore, the Court observed that gambling is equated with gaming and the activity involves chance to such a predominant extent that the element of skill that may also be involved cannot control the outcome. Whereas, a ‘game of skill’ on the other hand includes the exercise of skill that can overpower that chance element involved in the activity such that the better skilled would prevail more often than not.
Accordingly, the Court held that games such as rummy and poker cannot be banned by the impugned legislation and that the legislation is ‘manifestly arbitrary and ultra vires of the Constitution.
Read Order: here.
Karnataka High Court Seeks Response From Chief Secretary For Failure To Bring Regulation As Assured
The Karnataka High Court has directed the Chief Secretary to within a week file an affidavit setting out the reasons why the State Government has not abided by its assurances given to the court and made its stand clear about action, if any, they propose to take in the subject of banning online gambling and betting.
The bench gave the direction while hearing a petition filed by one Sharada D R who sought to ban all online betting and gambling. The bench in its order noted that “Notice was issued way back on 30th November 2020 with a direction to the State Government to file a statement of objections within six weeks.
The said order records that no further time shall be granted. A statement of objections has not been filed till date. At least, till the second week of April 2021, the excuse of the second wave of COVID-19 was not available to the State. Even on 12th January 2021, an assurance was given to this Court to file a statement of objections within three weeks. That assurance has not been abided by.”
Karnataka Ban On Online Betting Games Comes Into Force
The Karnataka Government notified the Karnataka Police (Amendment) Act, 2021, which seeks to ban all formats of online games that includes wagering, betting and gambling of all nature and forms in the state. The said act received the governor’s assent after it was passed in both the Houses last month. With its coming into force, the amended Act makes online gaming a non-bailable offence with imprisonment of up to 3 years and with fines of up to Rs. 1 lakh.
After TN, Kerala HC Quashes Notification Banning Online Rummy
The Kerala High Court on 27th September quashed a Kerala government notification banning online rummy. This comes on the heels of the Madras High Court judgement that struck down the Tamil Nadu government’s blanket ban on online skill games.
In February, 2021, the Kerala Government through a notification issued under the Kerala Gaming Act prohibited online rummy. A petition was filed by several gaming companies, challenging this amendment. The judgement pronounced by Justice TR Ravi of Kerala High Court, said the notification was arbitrary and violative of the right to trade and commerce and the right to equality guaranteed under the Indian Constitution.
In the Madras High Court judgement, the court observed that rummy and poker were games of skill. The court also noted that there was no difference between physical and online formats for games such as scrabble and chess. It is therefore wrong to assume that a game played online loses its element of skill.
The bill passed by the Karnataka legislature prohibiting online games of skill in the state, has come under a grey cloud now. The two consecutive High Court judgements further put the Karnataka bill under a huge amount of scrutiny. The Karnataka bill banning online games of skill had evoked a wide range of opposition from several industry and trade bodies. The powerful trade organization CAIT said that the bill threatens the thriving Indian gaming startup sector and will end up encouraging illegal offshore gambling and betting apps which operate in the online grey market.
Read order here.
Mobile Premier League Blocks Its Users In Karnataka
Mobile Premier League was one of the first companies to block access to its users in Karnataka the day after the Karnataka Police (Amendment) Act, 2021 came into force in the state. MPL’s gaming app showed messages to its users in Karnataka which said “Sorry! The law in your state does not permit you to play Fantasy Sports.”
FIR Against Dream 11 Founder After Karnataka Gaming Ban
Annapoorneshwaringar Police in West Bengaluru has lodged an FIR against the founder of Dream 11, Harsh Jain and Bhavit Sheth alleging that they have violated the new law banning wagering and betting on online games in the state.
The complainant said that he checked on Google Play that whether online gaming apps were available in Karnataka after the law came into force. He found that no other gaming apps were available other than Dream11.
After the FIR was filed, Dream11 has blocked access to its users in Karnataka.
Dream 11 Suspends Operations In Karnataka After Complaint Of Gambling Law Violation
Dream11 suspended its operations in Karnataka after a complaint was lodged against the founders for violation of the new state gambling law. The state law, which came into effect recently, bans online games involving betting and wagering and “any act or risking money, or otherwise on the unknown result of an event including on a game of skill”.
Illegal Broadcast Of World Cup And IPL Matches On The Rise
Reports from multiple parts of the country are coming up against illegal broadcast and airing of sports matches.
Amidst the high intensity excitement of the Men’s cricket T20 world cup, an FIR was lodged at Ahmedabad Cyber Crime Police station when the constituted attorney of Star India, submitted a complaint stating that a nefarious website has been hosting links to download four mobile applications that have been illegally broadcasting live T20 Cricket World Cup matches and another OTT platform shows of Disney+ Hotstar. Ahmedabad Police’s Cyber Crime Cell has started investigating the matter.
According to the police, an FIR has been filed against unknown persons under IPC Section 420 for fraud, 379 for theft and sections of the Information Technology (Amendment) Act and Copyright Act.
Similarly, The Odisha police have sealed the control room of a Balasore-based multi-system operator (MSO), Jaleswar Cable Network for transmitting Indian Premier League (IPL) matches without a valid interconnection agreement with official broadcaster Star Sports. The MSO, which caters to over 8000 TV households, was transmitting the live IPL feed by illegally downlinking a free to air (FTA) Afghanistani channel Watan TV HD through a DTH set-top box (STB).
This comes after, the Delhi High Court had Restrained ‘Rogue Websites’ From Infringing Star India’s Broadcasting Rights on 20th October. The Court granted interim injunction in favour of Star India Pvt. Ltd., against the ‘rogue websites’ from streaming, broadcasting or sharing through the internet the ICC Men’s T20 World Cup 2021.
Observing that a prima facie case is made out in Star India’s favour, Justice Sanjeev Narula directed the Internet Service Providers to block access to the seven websites within 72 hours and also directed Department of Telecommunications and Ministry of Electronics and Information and Technology to issue notification calling upon the internet and telecom service providers to block access to said websites.
Bombay High Court Seeks Maharashtra Govt Response On Plea Claiming Online Ludo Game Is Gambling
A petition was filed by “Keshav Ramesh Muley” (Member, Maharashtra Navnirman Sena) in the Bombay HC against “Cashgrail Private Limited owner of “Ludo Supreme App”, on the ground that it promotes gambling.
The petitioner contends that the provisions of the Maharashtra Prevention of Gambling (MPG) Act applies to the game if it is being played for stake. He submitted that a possibility of a 3-year-old winning the game could not be discounted and, hence, Ludo cannot be considered a game of mere skill but is a game of chance. The format of the game is similar to the original board game format but Muley claimed that the rolling of dice and value rolled is entirely controlled by the application and algorithm used by it. Further, the difference on the mobile application is that an entry fee is required to be paid before the game commences and the amount which is given as “feeble pretext of prize money” for the table is remitted into the electronic wallet of the winner.
The Court sought the response of the Maharashtra government on the plea seeking a declaration that “Ludo is a game of chance and not a game of skill”.
Is Fantasy Cricket Gambling? Supreme Court Adjourns Dream11 Hearing By Two Weeks
On a Special Leave Petition filed by social activist Avinash Mehrotra’s questioning the nature of business of fantasy cricket operators Dream11, has been adjourned by two weeks.
The debate whether fantasy cricket is a matter of skill or chance has been lingering for over two years now. While Real Money Gaming platforms like Dream11, MPL, Games 24×7 have insisted that online games like cricket, rummy, poker (and now ludo) overwhelmingly require skill and the chance element is negligible, the contentions in the SLP are exactly to the contrary.
The hearing came in the wake of a SLP that challenged a Rajasthan HC division bench judgement that gave Dream11 a clean chit, saying that fantasy cricket is a game of skill and there was no question of betting or gambling.
The verdict of the Rajasthan HC was a repetition of orders passed by the Bombay HC and the Punjab & Haryana HC in 2019 and 2017 respectively. The Bombay HC order of 2019 was the usual norm until a SC Bench of former CJI Bobde, Justice Gavai and Justice Kant, stayed it in March 2020 and for the first time and issued a notice to Dream 11.
Speed at which the matter is heard, disposed or adjourned is of real essence as the Real Money Gaming world is keenly looking up to this case. As a lot of investors are holding on till the matter is finally settled.
Madras High Court Refuses To Entertain Pil Which Seeks To Ban Online Games
A PIL was filed by E Martin Jayakumar, raising the concern that Online Games have become addictive to children and young adults. Thus, the said PIL sought to impose restrictions on Online Games in India. The Madras High Court disposed the PIL and said that “Courts should be slow in entering into such areas on the personal sense of morality of the individual complainant or the Judge or Judges concerned. There is no doubt that when there is some illegal action or something which is detrimental to larger public interest, Courts intervene; but in matters of the present kind, especially when elected Governments are in place, such matters of policy should be left to the wisdom of those representing the people instead of Court issuing a diktat.” The Court also asked the Petitioner to make representation of the issue to the Union and State Government within four weeks as it is a matter of policy.
Rohit Sharma joints metaverse with NFT collection
Rohit Sharma launches his personal non-fungible token (NFT) on digital collectables website FanCraze run by Faze Technologies. The memorabilia will be from some of his hundreds, the ICC Golden Bat from the 2019 ICC World Cup, or the ball used to pick his first IPL hat-trick for Deccan Chargers in 2009 against Mumbai Indians.
FanCraze has a three-year deal with the International Cricket Council (ICC) for the rights to its catalogue of video and audio clips, which goes back to 1975. It is creating NFTs linked to specific clips, which cricket fans will be able to buy in packs and trade on a secondary market.
Yuvraj Singh’s bat flies to space, becomes first minted NFT ever sent in Orbit
The NFT contains a 3D version of the cricketer along with his signed 1st-century bat to be made available for his fans. Furthermore, Colexion is creating a one-of-its-kind virtual NFT Museum for all the NFTs of Yuvraj where his fans can be a part of his life’s journey.
Colexion is a platform that allows fans to buy, trade, and sell unique digital collectibles in the form of non-fungible tokens (NFTs).
Karnataka HC reserves verdict on validity of ban on online gaming
The Karnataka High Court has reserved its judgement on a batch of petitions challenging the constitutional validity of an amendment to the Karnataka Police Act that banned online gaming in the state. A division bench comprising Chief Justice Ritu Raj Awasthi and Justice Krishna Dixit allowed the petitioners to file their written submission and reserved the order. The petitioners in the case are the All Indian Gaming Federation (AIGF), Mobile Premier League, Games24x7, Gameskraft, Head Digital Works and Junglee Games – based mostly in Bengaluru. The ban on online gaming came into effect in Karnataka with the state government notifying the Karnataka Police (Amendment) Act, 2021, in October, 2021. The Act banned all formats of online games involving wagering, betting and gambling of all nature and forms in the state.
Bombay High Court Says Non-IPC Offences Punishable With “Up To Three Years”, Will Be Categorised As Cognisable And Non-Bailable
While hearing a case under the Copyright Act, 1957, Trademarks Act, 1999 and other IPC sections, Justice Sarang Kotwal held, “Bare reading of this Part II of the Schedule-I of CrPC shows that, if the offences in the other laws are punishable with imprisonment for three years and upwards then the offences are cognizable and non bailable. Wherever it is possible to impose the punishment extending to three years, this category would apply, because in such offences it is possible to impose sentence of exact three years. In such cases offences would be non-bailable.”
The case was pertaining to the anticipatory bail filed by a Piyush Ranipa, who apprehended arrest in a case pertaining mainly to copyright infringement and faking of trademark of the complainant company.
Delhi High Court Refuses To Grant Injunction Against “Haathi Mere Saathi’ In A Suit Filed By Dr. Reddy’s Laboratories Limited
The Delhi High Court has refused to grant injunction against release of the Hindi feature film “Haathi Mere Saathi” (Kaadan in Tamil and Aranya in Telugu) in a suit filed by Dr. Reddy’s Laboratories Limited seeking stay on the release.
The Plaintiff’s grievance was that its business was popularly known as “DRL” which is also a registered trademark and it had found out that the Defendant (Eros International Media Limited) was using / portraying the Plaintiff’s trademark “DRL” in the trailer of the movie as a part of the name “DRL Township” in a derogatory/ disparaging manner. The Plaintiff further alleged that the plot of the movie centers on destruction of an elephant corridor and habitat by a corporate entity named DRL for the construction of its DRL Township and that such unauthorized se would be detrimental to its goodwill and reputation.
The Court noted that the application of the Plaintiff’s trademark was under “proposed to be used” category and further observed that it cannot be said that the acronym DRL has acquired distinctiveness and is associated only with the Plaintiff or that there is a tangible connection or direct association of the acronym DRL with the Plaintiff’s trademark/ company/brand. While refusing to grant injunction, the Court also took into account that the fictitious entity Drishti Refineries Limited (as used in the film) is involved in the business of setting up refinery plants and hence the acronym DRL and accordingly denied the Plaintiff’s contention that any movie goer would associate the name DRL Township with the Plaintiff.
Read order here.
Sunfeast Digestive Biscuits Packaging Not Deceptively Similar To Nutri Choice Digestive Biscuits: Delhi HC
The Delhi HC dismissed the application for interim injunction sought by Britannia Ltd. for or alleged trademark infringement and passing off by ITC’s Sunfeast Farmlite Digestive Biscuits, of Britannia’s NutriChoice Digestive Biscuits.
The court ruled that packaging of ITC’s “Sunfeast Farmlite 5- seed Digestive” was not deceptively similar to that of Britannia’s NutriChoice Digestive Biscuits.
A case was lodged by Britannia Industries Ltd. contending that they have registered a trademark on the packaging of NutriChoice Digestive biscuits earlier on Sep 11, 2020, and they are using the same trademark since 2014, whereas Sunfeast used the different packaging back then for their digestive biscuits.
Britannia Industries further claimed that after that, Sunfest has changed the packaging of its FarmLite 5-Seed Digestive biscuits w.e.f Sep 28, 2020, to be deceptively similar to NutriChoice’s packaging with the intention of encashing Britannia’s goodwill and reputation.
The court held that Sections 29(1) and 29(2) of the Trademark Act, 1999 should be interpreted broadly that the points of dissimilarity keeping in mind that the “points of dissimilarity between marks of rival companies cannot be regarded as irrelevant, or be ignored. The court said that ITC Sunfeast’s FarmLite Digestive Biscuits were not deceptively similar so as to confuse them with Britannia’s NutriChoice Digestive biscuits to a person of average intelligence and imperfect recollection.
The Delhi Court also ruled that a normal reasonable person does not particularly look at only similarities and discard the dissimilarities between the two. The court observed that if similarities can cause deception or confusion, dissimilarities can also prevent such possibility of deception.
The Court also held that the perception, whether in the case of infringement or passing off, is to be that of a person of average intelligence and imperfect recollection- not of an idiot or an amnesiac. Justice C Hari Shankar further noted that the average human mind has not been particularly conditioned to observe only similarities, and overlook dissimilarities.
Observing the fact, the court held that there were enough different features of the NutriChoice and FarmLite, in the sense that apart from the colour of the packaging, the name of the product, the name of the companies was completely different. The court further held that ITC and Britannia are both well reputed, established and well-known companies having their own niche clientele and that the logo of the companies visible on the packet is totally different. Hence the court dismissed the interim injunction application.
Read Order here.
Bombay High Court Rules In Favour Of Prince Pipes In A Trademark Infringement Suit
The Bombay High Court had granted an ad-interim injunction in a trademark infringement suit filed by Prince Pipes and Fittings. The ad-interim injunction was granted against the defendants, Prince Platinum Pipes and Fittings, Vigor Plast India Private Limited and Dhananjay Brass Products. While granting the ad-interim injunction, the Court observed that use of the trademark by the defendants is an attempt to trade upon and cash on reputation and goodwill of the Plaintiff, Prince Pipes.
The Bombay High Court Quashed Fir Registered Against Newslaundry Journalist Prateek Goyal, For Using The Logo Of ‘Sakal Media Group’ In Two Articles
The Bombay High Court in Prateek Chandragupt Goyal v. State of Maharashtra quashed an FIR lodged against Newslaundry journalist, Prateek Goyal by the Sakal Media Group for allegedly committing offences under the Trademarks Act, holding that the mere use of the registered trade mark in articles authored by the petitioner did not amount to false application of the trade mark.
Division bench of Bombay high court comprising Justice S S Shinde and Justice Manish Pitale, quashed the FIR registered for an offence under Section 103 of the Trademark Act, 1999.
The complainant Sakal Group had alleged that (Goyal) had committed an offence under Section 103 of the aforesaid Act by falsely applying the trademark of Sakal Group in two articles authored by him and published in “Newslaundry”. They further submitted that these articles were highly defamatory against the Sakal Media Group and that use of the official trademark of the Sakal Media Group and Sakal Times on these articles resulted in an offence under Section 103 of the Act.
The court noted that on the proper interpretation of Sections 101, 102 and 103 of the Trademark Act, from the facts of the case mere use of the registered trademark of the Sakal Media Group in articles authored by the petitioner and published by the news portal ‘Newslaundry’, do not fit into the definition of the false application of the trademark in relation to goods or services as the mark was included only to indicate those specific articles pertained to the Sakal Media Group.
Read judgement here.
A System Generated Harassment: Kerala High Court On Central Registration Centre Of MCA Declining Incorporation Of LLP On Trademark Grounds
The Kerala High Court recently held that the Registrar of Company was not justified in declining incorporation of “Reef Wellness & Excellence LLP” on the ground that the proposed name includes the word ‘Reef’, which is a trademark under Class 5.
The court noted that the rejection was done without application of mind, not considering the fact that the name proposed by the petitioner cannot be said to be identical or deceptively similar. The Kerala High Court criticized the government officials for blindly depending on the system without applying their mind.
Kunhi Muhammed Etayattil, who was the petitioner in the instant case challenged the order of the registrar of companies which rejected the incorporation of LLP named “Reef Wellness & Excellence LLP” on the ground that proposed name includes the word ‘Reef’, which is a trademark under class 5.
The petition expressed that the Section 15 (2)(b) of the LLP Act has to be read down to mean that, the restriction can be made applicable only if the proposed name includes a trademark registered in the same class of goods or services in which the activity of the company is being carried out or is proposed to be carried out.
The Single Judge Bench of Justice N. Nagaresh described the issue as “a ‘system generated harassment’ aggravated by non-application of mind by officials who leave everything to be dealt with by the system, thereby putting the common man to an agonising phase of suffering, where he is condemned to deal with faceless men and machines,” the High Court while expressing the dissatisfaction said.
The court added that the name proposed by the petitioner cannot be said to be identical or deceptively similar as when the petitioner sought for a word name for a service which is not identical or deceptively similar to other wordmark already registered for a different class of products, the respondents are not justified in rejecting the application on ground that the proposed name include the work “REEF” which is existing trademark under Class 05.
The court directed the respondent to incorporate the LLP without raising any dispute on the name proposed by the petitioner.
Read judgement here.
Phonepe Withdraws Trademark Injunction Appeal Against BharatPe
PhonePe had filed a suit for injunction against BharatPe on the ground of trademark infringement over using the suffix “Pe” in April, which was dismissed by the Delhi HC due to insufficient evidence to showcase infringement of Trademark, whereafter PhonePe filed an appeal in the High Court.
Walmart backed PhonePe withdrew its motion challenging the order but PhonePe confirmed that they have not withdrawn their original commercial lawsuit against BharatPe which was filed in 2019 where they accused BharatPe of trademark violations. PhonePe has also declined the possibility of reaching out to BharatPe for a settlement.
Delhi High Court Restrains Use Of The “Good Year” Mark
Recently, the Delhi High Court in the case Goodyear Tire and Rubber Company v. Deva Nand Sukhia restrained the defendant from using the mark ‘Good Year’ or any such mark which was identical or deceptively similar to the trademark that has been registered by the US-based tyre manufacturer company, Goodyear.
I&B Ministry Prohibits Broadcast Of Hope TV For 30 Days Over Unauthorized Logo And Non-Payment Of Annual Fee
Hope TV, a Christian lifestyle channel is now prohibited to operate for a period of 30 days from June 9, 2021, to July 8, 2021, under the extant policy guidelines for uplinking and downlinking of private TV satellite channels in India. The channel’s distributor Noida Software Technology Part Limited (NSTPL) had failed to deposit the annual permit fee for downlinking of the channel and did not reply to the show cause notice issued last year for using the unauthorized logo.
“Hope Channel India” for the channel instead of “Hope Channel”. The ministry also urged the company to deposit an annual permit fee of Rs 15 lakh from December 22, 2020 to December 21, 2021 and also directed the company to submit a copy of a valid distribution partner agreement with Adventist Television Network, USA for downlinking and distribution of the channel for viewing in India but failed to get any response yet.
Kerala And Karnataka Tussle Over The ‘KSRTC’ Mark
A seven-year IP battle between Kerala and Karnataka has finally come to an end where the legal right to the KSRTC trademark. Kerala has got the right to use the acronym KSRTC for its road transport corporations which was earlier used by both Kerala and Karnataka. As per the Kerala government, the Central Trade Marks Registry has announced its final verdict and given it the right to use the acronym KSRTC, its emblem and even the term ‘Aana Vandi’, a nickname that means elephant vehicle.
Singh And Singh v. Singh+Singh Trademark Injunction Order By Delhi High Court
The Delhi High Court temporarily restrained a Canada-based law firm, ‘Singh + Singh Lawyers LLP’ (‘S&S Canada’) from infringing the trademark of an Indian law firm, ‘Singh & Singh Law firm LLP’ (‘S&S India’). The Court held that owing to S&S India’s global reputation and goodwill, the similarity of the colour combination of the logos, the similarity in names, a possibility of confusion existed. The court was thus convinced that a prima facie case existed in favour of S&S India.
Intellectual Property Body Restricts Delhi-Based Entity From Using “Khadi” Brand Name
World Intellectual Property Organization (WIPO) has ordered a Delhi-based firm against using a domain name www.urbankhadi.com, which illegally uses the brand name “Khadi”.
The administrative panel of WIPO’s Arbitration and Mediation Centre has ruled that the firm “Om Soft Solutions”, owned by Harsh Gaba, had registered and used the domain name www.urbankhadi.com in “bad faith” to gain benefit from the goodwill of Khadi.
The panel’s order came on a petition of Khadi and Village Industries Commission (KVIC) against “Om Soft Solutions. The panel lent credence to KVIC’s contentions that it was a systematic attempt by the defendant to derive unfair advantage, wrongful commercial gains and to mislead the public into believing that www.urbankhadi.com is an associate of Khadi India.
The panel rejected the arguments of the defendant who claimed that the word “Khadi” enjoyed no protection and that nobody had an exclusive right to use the name “Khadi”.
The panel ordered that the disputed domain name be transferred to the complainant.
TV Show changed title after Manan Desai filed Trademark Infringement Suit in Bombay HC
Recently, comedian Manan Desai filed a trademark infringement suit in the Bombay High Court against a channel for using the words ‘Comedy Factory’ for their show title. Later, the channel agreed to not use these words and the show was later renamed to Comedy Show.
Manan, who is the co-founder of The Comedy Factory, had sent a legal notice to the channel after he learnt that the channel was all set to launch a show with the same name.
The name “Comedy Factory” is a legal trademark owned by Manan’s company. He contacted the new show makers even before the show’s promos were out. He requested them to change the name of the show but still, the show was being promoted with the same name on social media. Resultantly, Manan Desai moved the Bombay High Court and requested for an injunction. He said that his objective was to stop the telecast of the show because it was really damaging his company in the internet space. The company had got the name “Comedy Factory” registered under trademark laws and as per the law, the same name or title cannot be used.”
Delhi High Court Restrains Kitchenware Firm From Infringing ‘Amul’ Trademark
The Delhi High Court has restrained a Kitchenware company from using ‘Amul’ on its products as it is deceptively similar to the trademark of the Gujarat Cooperative Milk Marketing Federation Ltd.
The defendants claimed that they are using the trademark “Amul” in different class of goods and that they should be allowed to do so. The court however, rejecting their claim reiterated that “Amul” is a well-known trademark and word ‘Amul’ is distinctive and has no etymological meaning, and it is indelibly associated in the minds of the consuming public with the products of the plaintiff — Gujarat Cooperative Milk Marketing Federation Ltd.
Further, the mark used by the defendant company is not registered and is being illegally shown as a registered mark, hence, this is a clear case where grant of ad interim relief exists, the high court said and added that such representation also amounts to a fraud on the public.
The suit said the Gujarat Cooperative Milk Marketing Federation Ltd is the registered holder of the well-known trademark ‘Amul’ used in milk and milk products.
Clubhouse Reaches Undisclosed Settlement With The Owner Of A Sports-Networking Site, Which Sued The Audio App For Trademark Infringement Alpha Exploration Co., the parent company of the audio-only social media app Clubhouse has reached a settlement with SBS Consulting Group, who had sued Alpha Exploration for infringement of the trademark “The Clubhouse.”
Lawyers representing both companies filed a joint notice in federal court in Arizona saying they had reached a settlement agreement. Under the settlement terms, the parties were unable to discuss details. SBS Consulting also revealed that they had dismissed its complaint against Alpha Exploration.
SBS Consulting in May filed a lawsuit that said Alpha Exploration Co., Clubhouse’s parent company, had infringed on its federal trademark. SBS Consulting’s website “The Clubhouse” is a networking site for sports business professionals. The company said in its May filing that the buzzy audio app Clubhouse had infringed on that name.
Clubhouse, a company valued at $4 billion, has no registered trademark.
Gucci Moves Delhi High Court Against Trademark Infringement
The luxury brand filed a case for trademark infringement against Intiyaz Sheikh for using the logo of the luxury brand on his products.
The defendant was found to be maliciously indulging in manufacturing items and packaging material by copying the plaintiff. The court passed an order for the defendant to pay Rs. 2 lakhs in the form of damages and Rs. 1.66 lakhs as cost. Additionally, the defendant has been directed to hand over all infringing goods to the plaintiff for them to be destroyed.
Delhi HC Directs Google, Facebook To Block 25 Websites, Accounts Infringing Aaj Tak Trademark
The Delhi High Court single-judge bench of Justice Suresh Kumar Kait directed Google and Facebook to block 25 different websites, accounts and pages accused of infringing the “Aaj Tak” trademark and misleading the consumers into believing that these “anonymous” websites are somehow related to the Aaj Tak brand.
In September 2020, the High Court had passed a similar order against four defendants, which has now been extended to another 25 different websites.
The bench has also impleaded all these websites as parties to the case along with Google, Facebook and other Domain Name Registrars, issuing notice to them and calling upon them to respond by October third week.
Living Media India Ltd, the parent company of the Aaj Tak brand, had argued before the Court that the anonymous websites, trying to pass off as Aaj Tak, were deceiving and misleading the general public that these anonymous sites were linked to the Aaj Tak brand, and the same was causing immense losses to the brand’s goodwill and reputation.
The bench, prima-facie agreeing with the plaintiff, granted an ex-parte injunction in favour of Aaj Tak. The order from the Delhi High Court goes a long way in protecting a news brand against fake news and fake screen grabs which have led to rampant disinformation being circulated in public in the name of news, especially during the pandemic.
Read Order here.
Phonepe Drags BharatPe To Bombay High Court Over ‘Pe’ Suffix In ‘PostPe’
In a continuing dispute between payments companies PhonePe and BharatPe on the usage of the ‘Pe’ suffix, PhonePe on October 22 said that it moved the Bombay High Court (HC) on the matter.
“PhonePe sought an injunction to restrain Resilient Innovations, i.e. BharatPe from misusing PhonePe’s registered trademarks by using and promoting the marks ‘PostPe’ / ‘postpe’,” the company said in a statement.
On October 6, BharatPe had announced its foray into the Buy Now Pay Later (BNPL) segment with the launch of PostPe. However, this is not the first time that PhonePe has dragged BharatPe to court over the usage of the suffix.
In September 2019, PhonePe had moved the Delhi HC against the competitor for using the suffix, seeking a similar injunction. In April this year, the Delhi High Court dismissed PhonePe’s plea while observing that BharatPe was not in violation of the trademark.
PhonePe withdrew the injunction plea later and moved Delhi HC for a full-fledged trial against BharatPe which is currently ongoing.
“During the hearing on 22nd October, the HC observed that the mark PostPe adopted by Resilient Innovations is so phonetically, structurally and visually similar to PhonePe mark that he also thought that PostPe/postpe is a natural evolution of the word PhonePe and emanated from PhonePe,” the company added.
However, the suit was withdrawn to address certain observations made by the Bombay HC, with the liberty to file a fresh suit.
Dropbox Settles ‘Smart Sync’ Trademark Case
Los Angeles-based Ironhawk Technologies had accused Dropbox of infringing a trademark for its “SmartSync” software after the file-sharing company launched its own “Smart Sync” feature in 2017 for accessing files in cloud storage.
The companies didn’t disclose details of the settlement, but said in a joint filing with the court that they had agreed to dismiss the case with prejudice, which means it can’t be refiled.
Delhi High Court Observed That Google Cannot Absolve Itself From The Liability Of Ensuring That The Keywords Used Are Not An Infringement Of A Trademark
An application was moved by DR Logistics before the Delhi High Court, seeking an interim ex-parte injunction against Google India, Google LLC and Just Dial, restraining them from using or permitting third parties to use the applicant’s registered trademarks DRS LOGISTICS or AGARWAL PACKERS & MOVERS either as a keyword or as a meta tag or as a trademark.
While dealing with the application the question that arose before the Court was whether “providing a trademark of an owner as a keyword to a third party would amount to infringement of a trademark?”
After hearing arguments from both the sides, the Hon’ble Court observed that an infringement of a trademark can be by way of spoken use which is different from printed or visual representations of the mark and an invisible use of the mark can also result in infringement of a trademark.
Further, the Court observed that Google cannot absolve itself from the liability of ensuring that the keywords used are not an infringement of a trademark. Moreover, it was held that use of a trademark as keywords amounts to use as provided under the Trade Marks Act.
Read order here.
Delhi High Court Observed That In Cases Of Internet Trademark Infringements, It Must Be Established That The Foreign Defendants Had The Intent To Target Indian Customer
A suit was filed by Tata Sons Private Limited before the Delhi High Court seeking permanent injunction against the defendants from using the trademark ‘TATA’ for their crypto currency. While dealing with the said case, the question that arose for consideration was “whether the plaintiff can seek an injunction against the defendants’ mark, the defendants being located outside the sovereign borders of India and, therefore, statutorily outside the reach of the Trademarks Act, 1999, as well as the Code of Civil Procedure Code, 1908 (CPC)?”
The Hon’ble High Court while answering the above-mentioned question observed that in case of Internet Trademark infringement, it must be established that the foreign defendants had the intent to target Indian customers and market.
Read order here.
Delhi Court Disposes Bennett Coleman’s Trademark Infringement Suit After Settlement With Nominal Damages Of Re. 1
A Delhi Court has disposed of a suit filed by Bennett Coleman & Co. Ltd against entities involved in providing gifts and other accessories on their web portals alleging trademark infringement and use of its mastheads in view of a settlement with the defendants with nominal damages of Re. 1.
The plaintiff sought a decree of permanent injunction restraining the defendants from manufacturing, selling, offering for sale, advertising, directly or indirectly using and infringing the trademarks namely “The Times Of India”, “The Economic Times”, etc. belonging to the plaintiff company and other deceptively identical or similar trademarks on the goods and services being provided by them to their customers on the web portals or otherwise.
The court noted that the terms of respective applications and Settlement Agreements appeared to be within the four corners of law and hence the said settlement agreement was accepted.
Read order here.
[Breezer v. Freez Mix] Delhi High Court Provides Interim Relief To Bacardi In Trademark Suit
The Delhi High Court through an order dated 12th November, 2021, granted interim relief to alcohol manufacturer Bacardi (plaintiff) in a trademark dispute relating to its alcoholic beverage Breezer, by restraining makers of a non- alcoholic beverage ‘FREEZ Mix’ from using the trademark ‘FREEZ’ or any other mark, label, sign, device or name identical to ‘BREEZER’ (Bacardi and Company Ltd. vs Bahety Overseas Private Ltd. & Ors.).
Single-judge Justice C Hari Shankar ordered Bahety Overseas Private Ltd., the manufacturer of ‘FREEZ Mix’ to restrain from using name, device or label similar to Breezer, during the pendency of the suit filed by Bacardi.
The Court said that the mark ‘FREEZ Mix’ and the shape of the bottle in which it was sold were deceptively similar to that of Breezer. The names were also phonetically similar, the Court observed. “The plaintiff, therefore, has, in my view, made out a prima facie case for grant of interlocutory injunction on the basis of infringement of its registered trademarks,” the Court held.
Breezer is a rum-based beverage mixed with various fruit essence which is manufactured by Bacardi. Bacardi also held trademark registrations for the word mark ‘BREEZER’ in Classes 32 and 33. The shape of the bottle in which Breezer was sold had also been granted registration as a trademark.
The defendants, a manufacturer of non-alcoholic beverage was selling its product under the mark ‘FREEZ Mix’. Bacardi moved the High Court by way of the present suit against the same. With the pleadings in the suit yet to be complete, Bacardi sought interim relief against Bahety.
Read order here.
US-Based Meta Company To Sue Facebook For Infringing Upon Its Name
In an interesting turn of events, a Chicago-based tech firm called Meta Company is going to court against Facebook, saying the social network stole its name and “livelihood” after it rebranded its name to Meta.
In a statement, Meta Company Founder Nate Skulic said that when Facebook failed to buy them, it aimed to “bury” the company by force of media.
Skulic has alleged that upon a failed attempt by Facebook to buy the Meta company, Facebook now are infringing the company’s intellectual property rights. A live trademark was filed for Meta Company in 2016 that lists the registrant owner at Chicago, Illinois.
Skulic elaborated that it’s unfortunate to have been associated with a company so rooted in controversy and fixated on domination and therefore his Company aims to be distinguished from Facebook’s totalitarian view of the future.
Britannia Industries was granted an ad interim injunction by the Delhi High Court against Good Day Oral Care for allegedly using the identical trademark “GOOD DAY”. The Court accepted the view that “GOOD DAY” is a well-known mark and therefore, Britannia has a right to seek injunction under Section 29(4)(b) of the Trademarks Act, 1999.
The Counsel for Good Day Oral Care argued that “GOOD DAY” is a generic mark and the Plaintiff cannot be held as entitled to exercise monopoly over it. However, the Court vehemently refused this argument and also ordered suspension of the impugned domain name ‘gooddayoralcare.com’.
The order of the Court dated 15th November, 2021 can be accessed here.
Calcutta High Court Restrains Baidyanath From Running Advertisement That Disparaged Chyawanprash
The Calcutta High Court restrained Baidyanath from uploading or publishing any advertisement that allegedly disparaged the reputation or goodwill of Chyawanprash, a brand owned by Dabur, which has been sold by Dabur Chyawanprash for a few decades.
Baidyanath in its advertisement featuring actor Pankaj Tripathi claimed that the Chyawanprash made by it has 52 Ayurvedic herbs whereas Chyawanprash of other companies are not formulated in accordance with the Ayurvedic texts and have only 42 ingredients.
Delhi High Court Restrains Domex From Airing Commercials That Target Harpic [Reckitt Benckiser India Pvt Ltd. v. Hindustan Unilever]
A division bench of the Delhi High Court on November 01, 2021 reversed the judgment of a single judge bench that said that comparative advertising is permissible and Harpic should not be hypersensitive about it. The Court restrained Domex, a brand owned by Hindustan Unilever from airing an advertisement that disparages the brand of its competitor, Harpic.
And There Was (N)One Trademark: Delhi HC Holds Agatha Christie’s Novel As A Distinctive Trademark
Recently, the Delhi High Court set aside an order dated 14th January, 2021 which refused to grant registration of trademark to Agatha Christie’s book, “And There Were None” to a Company established in 1955 by the writer. The Court directed the Registry to allow the registration of the mark under Classes 9, 16 and 41 of the Schedule to the Trademark Rules, 2017.
The mark was denied registration for the reason that the applied trademark lacked ‘distinctiveness’. Justice Hari Shankar observed that the mark is neither descriptive nor deceptively similar to any other registered trademark. Further, the mark pertains to be distinctive in the categories under which its registration is sought.
Justice Hari Shankar further remarked that Article 19(1)(g) of the Constitution of India partakes the right to register a mark which one intends to provide good or services. He also clarified to the Registrar of Trademarks that he is an ‘avowed aficionado and admirer of Agatha Christie’.
The copy of the order dated 8th December, 2021 can be accessed here.
Police File Fir Against Arbaaz Khan, Sohail Khan For Violating Covid-19 Norms
An FIR has been registered against actors viz Arbaaz Khan, Sohail Khan and Sohail’s son Nirvaan Khan for breaking Covid-19 protocol. As per the reports, they had returned to Mumbai from Dubai on December 25 and they were asked to stay in isolation at a hotel. However, they decided to skip the isolation and went home. FIR was registered based on the complaint by a Brihan Mumbai Municipal Corporation (BMC) medical officer under Section 188 (disobedience to an order duly promulgated by a public servant), section 269 (a negligent act which is likely to spread infection of disease dangerous to life) of IPC and Section 3 of Epidemic Diseases Act.
CBFC Issues Notification To Display Title, Credits In Language Of Dialogues Of Films
The CBFC has issued a new notification to filmmakers, to display the title, casting and credits of a film in the language of the movie that has been applied for certification and the same may be displayed in any other language if so desired.
Tribunal Reforms Ordinance, 2021 Takes Effect: Appellate Authorities In 9 Laws Replaced With High Courts
The Central Government notified the Tribunals Reforms (Rationalisation And Conditions Of Service) Ordinance, 2021, by which appellate authorities under nine Acts have been done away with and the right to hear appeals under the statute has been conferred directly to the High Courts.
The Bill to the above was already introduced in the Lok Sabha this budget session but it could not be taken up for consideration. The Centre under Article 123 (1) of the Constitution introduced the ordinance with instant effect. The Ordinance promulgated by the President has to be adopted or rejected in the next session of the Parliament within six weeks from the commencement of such session.
The Tribunal Reforms Ordinance abolishes appellate authorities under nine Acts and the right to hear appeals under the statute has been conferred on the High Courts. Further, certain other amendments have also been introduced in the Finance Act, 2017 in provisions relating to the qualifications and tenure of the Chairperson and members of Tribunals.
The amendments brought in by the Ordinance have scrapped the IPAB and has transferred its powers and duties to the High Courts and Commercial Courts. Therefore, all the cases and appeals shall now lie with the relevant Courts. This will discard the extra layer of litigation that the litigants had to go through. The reason behind this action was set forth in the Statement of Objects and Reasons when the Bill was proposed in the Lok Sabha which is that the tribunals have not necessarily led to faster justice delivery and they are also at a considerable expense to the exchequer.
The cases pending before the IPAB will now be transferred to the high courts as per clause 15 (3).
Read Ordinance here.
YouTube’s Updated Terms Of Service May Impact Content Creators
YouTube has updated its terms of service for all countries outside the United States. The news rules come into effect from 1st June. As per the new rules, content creators who are not part of YouTube Partnership Program will be rendered ineligible to earn revenues.
As per reports, all the content creators that have not signed up their partner program will need to include videos chosen by YouTube. Only YouTube will get monetized, the creators will not get any benefit from these videos. These videos will not generate any revenue for the channel owners.
The criteria for joining YouTube partner program is to have more than 1,000 subscribers and 4,000 public watch hours. Any channel that can fulfil these requirements is eligible to become a part of YouTube partner program.
IAMAI Board To Oversee The Self Regulatory Code Of Conduct By Crypto Exchanges
The Blockchain and Crypto Assets Council which includes India’s largest exchanges like WazirX, ZebPay etc. is a body of the Internet and Mobile Association of India (IAMAI) which will be setting up a formal board to oversee the implementation of a self-regulatory code of conduct by crypto exchanges. This board will consist of eminent jurists, fintech compliance specialists, and technical specialists. A spokesperson of IAMAI has also said that “IAMAI has suggested that the government should regulate crypto assets through an act of Parliament.”
Bombay High Court Upholds The Tariff Plan Introduced By TRAI In January, 2020
Various petitions filed by Film and Television Producers Guild of India, Indian Broadcasting Foundation and TV broadcasters including Sony Pictures, Zee Entertainment, Star India, Disney, TV18, Asianet Communications among others challenged the constitutional validity of the recently introduced new tariff rules by TRAI. The Bombay High Court while disposing off the petitions upheld the Constitutional validity of the recently introduced tariff rules, however, it struck down the condition which restrained broadcasters from including premium channels — rates of which exceeded three times the rate of the average channels — being offered in the bouquet and held that it was unconstitutional. The petitioners, although sought a stay on the implementation of the judgment, so that the petitioners can appeal in the Supreme Court. The Court granted the said stay to the petitioners.
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 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.
With The Abolition Of IPAB, Delhi High Court Has Created an Intellectual Property Division To Deal With IP Cases
The Delhi HC has established an Intellectual Property Division to deal with matters related to IPR. This is done in line with the committee recommendations by Chief Justice D.N. Patel and composed of Hon’ble Ms. Justice Prathiba M. Singh and Hon’ble Mr. Justice Sanjeev Narula. The committee was constituted to streamline and comprehensively review how a large quantum of IPR cases should be dealt with. The creation of Intellectual Property Division (IPD) would avoid multiplicity of proceedings and the possibility of conflicting decisions with respect to matters relating to the same trademarks, patents, design etc. The Delhi High Court is also in the process of framing comprehensive Rules for the IPD. A Committee has already been constituted for framing of the `Delhi High Court Patent Rules’ which shall govern the procedures for adjudication of patent disputes before the Delhi High Court. The first draft of these Rules has already been notified for stakeholders’ comments, which have been received.
Delhi High Court Invites Comments From The Bar On Draft Delhi High Court Intellectual Property Rights Division Rules, 2021
The Delhi High Court has framed the draft Delhi High Court Intellectual Property Rights Division Rules, 2021 and has invited comments on it from the Bar. The said Rules were framed by a two-member committee comprising of Justice Sanjeev Narula and Justice Pratibha M. Singh, constituted by Justice DN Patel, Chief Justice of Delhi High Court. The aim of the said rules is to examine the creation of an Intellectual Property Division in the Delhi High Court which shall deal solely with cases concerning Intellectual Property issues.
The decision to create a new division in the High Court was taken in furtherance of passing of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 which abolished the Intellectual Property Appellate Board. This would lead in transfer of cases from the IPAB to the High Court which is approximately 3000 in number. The new division would deal not only with original proceedings, but also with Writ Petitions (Civil), CMM, RFA, FAO relating to Intellectual Property Rights disputes. The motive behind creating a new division is to avoid multiplicity of proceedings and to avoid conflicting decisions.
Read draft Rules here.
Govt Comes Up With Accessibility Standards For Hearing Impaired On TV Channels
The government has come up with new accessibility standards, under which almost all television channels will have to ensure that they either carry captions or sign language to help the hearing impaired understand the programming. The Ministry of Information and Broadcasting on 3rd November, 2021 floated a draft of the standards and asked for feedback from the stakeholders within a span of 21 days.
The standards shared by the ministry mention that all programming, barring “live and deferred live content/events such as sports: live news, events like live music shows, award shows, live reality shows, etc.; content like music shows, debates, scripted/ unscripted reality shows, etc.; and advertisements and teleshopping content” will have to adhere to these standards.
Channels which have less than 1 per cent average audience share for all households over a year will also be exempt from these standards.
The ministry noted that it is in process to get the “Accessibility Standards for Television Programmes for Hearing Impaired” notified under the Rights of Persons with Disabilities Act, 2016, through the Department of Empowerment of Persons with Disabilities (DEPwD), Ministry of Social Justice and Empowerment, to make television content more inclusive for persons with hearing disabilities.
Read notice here.
Commission Of Minorities Takes Up Minority Portrayal In Films With CBFC
The Commission for Minorities (NCM) and the CBFC will look at putting in place by December a protocol for the portrayal of minorities in movies, Commission Chairperson Iqbal Singh Lalpura said.
The Commission has acted upon the rising number of complaints over the issue and taken it up with the CBFC.
This comes after one complainant from Tamil Nadu said that there has been a poor portrayal of Christians in Rudratandav. Jathedar Sikhs have also complained about the ‘poor portrayal’ of Sikhs in movies.
Sources in the Commission said the complaints so far have been general; no specifics have been given as to how the portrayal of minority communities in Indian movies has been inappropriate.
Officials in commission have indicated that these complaints need to be looked at and investigated. The country is divided into nine regions under the CBFC and there is a five-member movie screening committee in each region, headed by a regional officer. Officials from commission mentioned that it mandatory that there must be at least one woman on each committee but there is no such mandate for a member of the minority community to be on these committees.
The Commission is looking at the possibility of mandating the nomination of a minority member in these screening committees in each region.
Aaj Tak Approaches Delhi High Court Against The Order Of The Ministry Of Information & Broadcasting
Aaj Tak news channel has approached the Delhi High Court and has sought for quashing of an order passed by Ministry of Information & Broadcasting, dated 26th July, 2021, against a text displayed by the channel. The text was held as violative of Section 6(1)(i) of the Programme Code.
The case to the spotlight through a petition filed by the Actress, Rakul Preet Singh, against Aaj Tak, claiming false reporting on their end regarding a drug case being investigated by the Narcotics Control Bureau. Singh approached the I&B Ministry and News Broadcasting Standards Authority (NBSA). NBSA ordered in favour of Aaj Tak and accordingly, Singh filed for an independent review against the decision.
The Ministry then passed an order against Aaj Tak declaring that they had violated Section 6(1)(i) of the Programme Code.
Parliamentary Panel Adopts Draft Data Protection Bill Amid Dissent Notes From Opposition
Draft report on The Personal Data Protection Bill, 2019, was adopted after nearly two years of deliberation.
Some of the issues raised by the opposition included: (a) centre would now hold powers to allow any government agency to be exempt from the Act in its entirety, without first seeking parliamentary approval; (b) reduction of penalty provision, which would have held the tech giants responsible in case of any violation; (c) dilution of the regulation of social media platforms.
A Parliamentary Panel Pulls Up The Information And Broadcasting Ministry For Deciding Complaints Against Tv Channels In A Lackadaisical Manner
The Parliamentary Standing Committee on Communications and Information Technology which is led by Mr. Shashi Tharoor pulled up the Information and Broadcasting Ministry for deciding complaints against TV channels in a lackadaisical manner on November 01, 2021. The complaints were made against the TV channels for violation of the Programme and Advertising Codes. The said panel took a serious note of the situation and observed that if timely sittings are not held to come at a decision on the pending cases, then the impact of action taken is diluted as well as gives the channels a chance to repeat the violations of the code which they violated earlier.
The Parliamentary Standing Committee On Communications And Information Technology Recommends Setting Up Of Media Council
The Parliamentary Standing Committee on Communications and Information Technology on November 01, 2021 recommended that a Media Council should be set up as media is gradually losing its ‘credibility and integrity’. The aim of setting up the said council would be to check the ‘irregularities’ in print, electronic and digital platforms.
The Parliamentary Committee said that the Media Council will have statutory powers. Further, the committee said that the Media Commission will look into all the complex matters related to the media industry and shall submit the report which it concludes to the Parliamentary Committee within six months of its commencement.