The Delhi High Court on August 30, 2022 directed mobile messaging platform ‘Telegram’ to disclose details such as devices, mobile numbers and internet protocol addresses used to operate channels involved in copyright infringement cases. Read order here.
The Court was hearing a suit filed by a teacher Neetu Singh (“Plaintiff’”), against Telegram and unknown persons. The Plaintiff in her petition said that videos of her lectures and books on competitive exams were being frequently uploaded on Telegram under multiple channel names.
The Plaintiff added that even after repeated notices to Telegram, some channels were being taken down, but new channels kept mushrooming using different names. The court on July 28, 2020 had passed an interim order in the case. Since the order did not prove effective in curbing the unauthorised dissemination, the plaintiff moved an application seeking disclosure related to the people operating such channels.
Below is an image representing how the Plaintiff’s copyrighted material were being circulated on the Telegram channels:
Issue: Whether an intermediary such as Telegram can be directed to disclose the identity of the creators of the infringing channels engaging in unauthorisedly and disseminating the copyrighted works of another person.
Telegram’s contentions
Telegram raised the following grounds for rejecting Plaintiffs’ prayer for disclosure of information of individuals operating the infringing channels:
- Taking down telegram channels:- Telegram’s Counsel contented that upon receiving intimation of an offending channel, Telegram has removed such copyright infringing channels from its platform and this interim arrangement, already in place, was sufficient to protect the “interests” of the Plaintiff. He added that Telegram, as an intermediary, is only required to remove the infringing content upon recieving a notice and it has no liability towards any third party information circulated on its platform.
- Violation of Privacy Policy– Telegram’s Counsel told the Court that Telegram stores its data on a cloud server in an encrypted form. Such personal data is be protected under Telegram’s Privacy Policy and its Terms of Service. Additionally, under Clause 8.3 of Telegram’s Privacy Policy, disclosure of subscriber information cannot be made except in cases where a court order confirms that the subscriber is a terror suspect. Further, under Section 72A of the Information Technology Act, 2000 any disclosure of information in breach of a lawful contract ( which in this case is between Telegram and the creator of the infringing channels) would constitute as an offence.
- Servers in Singapore– Telegram’s counsel argued that Telegram cannot share the data relating to the creators of the infringing channels since the data stored in its servers are based in Singapore and the laws of Singapore prohibits disclosure of such data. The Counsel added that under the laws of Singapore, Telegram may disclose certain information upon directions of a ‘Court’ and in this context ‘Courts’ would mean a ‘court’ based in Singapore. Therefore, an Indian Court is not empowered to direct Telegram to disclose any such user related information.
- IT Act– . The Counsel added specific conditions as laid down in the proviso to Rule 4(1) and (2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 must be met before even a court can pass an order directing disclosure of user information.
- Puttuswamy judgement– The Counsel relied on the Supreme Court’s judgement in Justice K.S. Puttaswamy v. Union of India which states that, any disclosure of information would not be permissible since the privacy of the user is protected under Article 21 of the Constitution of India.
Court’s Ruling
- The Copyright Act 1957 permits the copyright owner to file a suit for infringement at the place where the owner resides or carries out its business. The Court held that the jurisdiction of Indian Courts cannot be outsed for the reason that Telegram stores its data on servers outside India. The Court observed that the infringing material is related to Indian examination, and thus, in all likelihood the source of the infringing channels are in India and therefore the accounts of such infringing channels would have been created from India and the data of such accounts would have been uploaded from India. Cloud computing being the norm these days, therefore, even if the data is stored in a physical structure outside India, the same is accessible to Telegram in other jurisdictions including from India. The court emphasized that the conventional concepts of territoriality no longer exist since such data is accessible across different jurisdictions. Further, Telegram’s services are being offered in India, and the platform is earning substantial revenue from India. Therefore, Indian Courts would be perfectly justified in directing Telegram, which runs its massive operations in India, to adhere to Indian law and pass orders for disclosure of relevant information relating to the infringers.
- The definitions of “infringing copy”, “plates” and “duplicating equipment” under the Copyright Act, 1957 are broad enough to cover ‘devices’ of channel operators and electronic copies of infringing content being circulated on the Telegram channels. Therefore, both civil and criminal Courts in India are vested with the jurisdiction to provide reliefs under the Copyright Act.
- The Court observed that if the infringers are permitted to mask their identity, orders granting only injunctive relief do not hinder them from creating new channels under different names and continue profiting off their infringement and in this situation the aggrieved are compelled to repeatedly seek blocking orders against new channels. Accordingly, the Court said “the grant of injunction per se in the absence of commensurate damages or monetary deterrents would be a toothless relief”. The Court further added, ‘In the present case, the infringement has to be nipped in the bud, without which Courts would have to continue to repeatedly pass injunction orders against mushrooming channels containing infringing content.’
- Any disclosure in proceedings related to copyright infringement would be recognized as an exception to privacy under Personal Data Protection Act, 2012 of Singapore.
- The IT Rules and the guidelines in any manner do not obviate the duty of Telegram as a platform to take all effective steps required to protect Intellectual Property Rights, including rights of copyright owners. The Court said ‘production of details of infringing devices or persons or other sources, is not a comment on Telegram’s liability and does not derogate from safe harbour provisions. In fact, it is aligned with the view of Telegram’s claimed role as an intermediary, which claims to act as a conduit of information’. The court here reaffirms Telegram’s role as an intermediary and not a publisher. Further, it is pertinent to add here that Clause 8.3 of Telegram’s privacy policy states “If Telegram receives a court order that confirms you’re a terror suspect, we may disclose your IP address and phone number to the relevant authorities. So far, this has never happened”. The privacy policy does not mention any other case in which Telegram will share data with law enforcement agencies.
- Disclosure pursuant to an order passed by a Court of law of the details of the channel operators who are disseminating materials infringing the copyrighted works, or the devices and other gadgets used, cannot be shielded under the grounds of protection of privacy or protection of freedom of speech and expression. The right to freedom of speech or the right to life including the right to privacy cannot be used by any person or entity, let alone an infringer, in order to escape the consequences of illegal actions.
The Court thus directed Telegram to disclose the details of the channels/devices used in disseminating the infringing content, mobile numbers, IP addresses, email addresses, etc., used to upload the infringing material and communicate the same, as per the list of channels filed along with the present application.
This is not the first time that Telegram has faced criticism due to its privacy policy. Earlier this year, Brazil’s Supreme Court had directed a national shutdown of Telegram on account of failing to prevent it users from facilitating the spread of political misinformation and for non-cooperation with the authorities. Prior to this, Telegram got banned in Russia for refusing to share encryption keys in anti-terrorism investigation. Both bans were however subsequently lifted.
Concluding Thoughts
The present judgment will surely have an impact on the operations of foreign platforms/intermediaries who make their services available in India since they now cannot escape the jurisdiction of Indian courts on the grounds of being incorporated outside India or locating data or servers outside India. It could also set a precedent for asking social media and messaging companies to disclose information relating to the users of their platforms in certain cases where there is prima facie violation of a law by such users rather than simply blocking or taking down the channels. However, we must note that in the event it starts getting frequently used then the repercussions could get severe. For example if there is no commercial use and content is being shared for private use, will it still constitute as an infringement?
Having said that, the present judgment effectively clarifies that IT Act does not override the Copyright Act, and can be harmoniously read with it.
The Court had given two weeks time to Telegram to comply with the order and whether Telegram will follow such order or resort to other legal means is yet to be seen. There is a possibility that the present order may be challenged soon considering how strenuously intermediaries have been defending its position before the Indian Courts. Recently, WhatsApp has challenged section 4(2) of IT Rules of 2021 which require messaging platforms to identify the first originator of a particular information as it would require WhatsApp to break end-to-end encryption and compromise privacy of individuals. It will be interesting to see how in the coming times, the Indian Judiciary will balance the rights protected under the IT Act vis-à-vis the right to privacy claimed under Article 21 of the Constitution of India.
