The Delhi High Court (“Court”), vide judgement titled Neetu Singh and Ors v. Telegram FZ LLC and Ors dated 30th August 2022 (“Judgement”), has directed the messaging application ‘Telegram’ to disclose the identities of administrators of channels/accounts on its application, hosting infringing content. The Court has held that courts in India will have jurisdiction to direct intermediaries to disclose details about copyright infringement claims which have arisen in India despite the servers holding data of intermediary located outside India.
Background
Plaintiff No. 1 (“Plaintiff”) is a renowned author of books which are designed to train students aspiring to take various competitive examinations including the examinations of Staff Selection Commission, CDS, NDA, etc. The suit has been filed by the Plaintiff against Telegram FZ LLC ("Telegram") on the ground that the Plaintiff’s copyrighted works including course material, online lectures and other works are being disseminated unauthorizedly through various Telegram channels.
Plaintiff aver that on these channels, videos of the lectures delivered by Plaintiff are being uploaded on a daily basis and being made accessible to students at discounted rates. In so far as Telegram's role is concerned, according to the Plaintiffs, as per the Privacy Policy of Telegram, any abuse on Telegram channels can be reported. Accordingly, after acquiring knowledge of the illegal dissemination of the Plaintiff’s works, e-mails were sent to the e-mail addresses where abuse can be reported and the Plaintiffs called upon Telegram to take down the impugned channels. Upon receipt of the said notices some channels were taken down by Telegram, but some infringing channels continued to exist and new channels came up almost on a daily basis.
The Plaintiffs argued that Telegram shall disclose the identities of persons who ae disseminating the infringing materials on these channels. This would enable the Plaintiffs to avail remedies including damages against the persons for copyright infringement, in line with Telegram’s privacy policy that permits such disclosure.
Issue
Whether an intermediary, operating in India but having data servers abroad, can be directed to disclose the identity of the person who is infringing copyrights in India?
Observations of the Court
1. The Indian Courts would have jurisdiction over Telegram despite of the fact that Telegram is storing its data on servers which are located abroad. The Copyright Act, 1957 permits the owner of a copyright to file an infringement suit where the owner carries on the business.
2. The Court observed that Plaintiff is the owner of the course material, which would constitute "literary works" under Section 2(o) of the Copyright Act. The videos consisting of teaching various subjects would also constitute "cinematographic films" under Section 2(f) of the Copyright Act. Thus, under Sections 2(o) and 2(f) of the Copyright Act, both "literary works" and "cinematographic films" are protected. Further, Section 14 of the Copyright Act recognizes exclusive rights, which vest in the copyright owner. The works of the Plaintiff are protectable under the Copyright Act and any unlawful dissemination and communication in print or electronic form would constitute infringement of the copyright of the Plaintiffs.
3. Further, the Court observed that the definitions of “infringing copy”, “plates” and “duplicating equipment” under the Copyright Act are broad enough to cover the devices of channel operators which permit and enable dissemination and communication of infringing content, and electronic copies circulated on Telegram channels. Therefore, both civil and criminal Courts in India would always be vested with jurisdiction to adequately deal with dissemination of infringing material through such devices and merely because the messaging service has its server located abroad, the same cannot result in the infringer escaping from the consequences of infringement.
4. If infringers are permitted to mask their identity through technological means provided by messaging apps, and their identity is not directed to be disclosed, the remedy of damages against infringement would be rendered completely nugatory. Under Section 55 of the Copyright Act, the owner has a right to seek damages as also accounts of profits.
5. Indian Courts would have jurisdiction in view of the following factors- (i) infringement is continuing in India (ii) the accounts creating infringement are in India (iii) devices circulating the infringed material are in India (iii) the data is accessible across different jurisdictions, including India and the conventional concepts of territoriality no longer exist, such that locating the physical server outside India would divest Indian Courts of their powers (iv) Telegram if actively offering its services in India and as per Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”) , they are obligated to appoint necessary grievance officer in India.
6. Based on these factors, Courts in India would be perfectly justified in directing Telegram, which runs its massive operations in India to adhere to Indian law and adhere to orders passed by Indian Courts for disclosure of relevant information relating to infringers. Infringers cannot be permitted to seek shelter under Telegram's policies merely on the ground that its physical server is in Singapore.
7. The intermediary is to be granted safe harbour so long as it complies with the requirements of law. The Court cannot perpetually supervise such infringements and, thus, the origin and source of the infringing material has to be traced and such devices or persons involved in the infringement ought to face consequences in accordance with law, including being held liable for damages. That would not be possible if the source of such infringing copies, i.e., the details of the infringing channels are not disclosed. Pertinently, such 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.
8. The Information Technology Rules and the safe harbour provisions of the Information Technology Act do not preclude Telegram’s duty as a platform to take all effective steps to protect intellectual property rights. Production of details of infringing devices or the persons would not derogate from the safe harbor provisions or put any liability on Telegram for such infringing acts of others.
Our Views
While the current judgment focuses on protection of intellectual property against infringement, at the same time it can be observed that this judgment has widened the jurisdiction of Indian Courts. Now intermediaries cannot shield from liability or escape jurisdiction of Indian Court by incorporating abroad or by having their data servers abroad. The Court has also observed that the conventional concept of territorial jurisdiction no longer applies to data which is accessible through cross- borders. It is expected that this order will be challenged and it will only be seen with time as to whether this judgment will have a diluting effect on the protections available to intermediaries.