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DELHI HC: ON ROLE OF ONLINE INTERMEDIARIES INTER ALIA INTELLECTUAL PROPERTY RIGHTS
Facebook Inc V Surinder Malik and Ors
The area of cyber policy in India has been the subject of various debate and discourse among students, jurists and lawyers. Online Intermediaries are called as such because only host contents and differ in how this content is protected. Eg WhatsApp uses end to end encryption, while Facebook does not have the same provision.
Section 79 of the IT Act 2000 holds intermediaries to be exempt from tax liability for content hosted on their platform. The rise in recent times of fake news, hate speech and copyright infringement over social media is a huge cause for concern. The question of who to sue in case of copyright infringement is a question up for debate. If the intermediary can be held liable, the question of censorship also comes into play. Can a Non –State Actor engaging in a form of pre-censorship be allowed to curtail the spread of individual expression?
These questions were answered by the Delhi High Court in the instant case wherein the core issue was the liability of online intermediaries in case posting of material infringing intellectual property rights. In the current case, it was the submission of Surinder Malik that the trademark “Da Milano” was being misused by various entities upon the platforms of Facebook and Instagram.
Facebook and Instagram seeked to escape liability by asserting that they responsible only for hosting of contents and nothing more. The Delhi High Court rejected this submission by interpreting Section 79(3) of the I.T Act 2000 and relying upon the Intermediary Guidelines 2011 that ensure that an intermediary can take down content upon a Court ordering the same. Asserting that the constitutionality of Section 79(3) b has been upheld by the Supreme Court in the case of Shreya Singhal v Union of India, the Court mandated its applicability in the present case. Justice Prathiba M Singh thus issued orders to the online intermediaries that is Facebook and Instagram that upon intimation presence of copyright infringing material , they are mandated by Rule 3(4) of the 2011 Intermediary Guidelines to take down the same within the prescribed time.
This judgement is landmark as it imposes a judicial obligation along with an already existing legal obligation upon the intermediaries. It also provide some clarity in the current grey area of cyber policy in India. Given the huge rise in copyright violations, it is high time that India introduces a mechanism like the GDPR in Europe. Recommendations of the Justice B.N Srikrishna Report on data protection in the case of cross border access, mutual legal assistance, data localization have to be implemented by the Union Government for the better protection of intellectual property rights
