The Delhi High Court has said the defence of free speech and the right to privacy cannot be used by any entity, including an infringer, to escape the consequences of illegal actions.
The remark was made by the high court while directing messaging platform Telegram to disclose in a sealed cover the details of channels, including their mobile numbers and IP addresses, disseminating certain content in violation of copyright law.
Justice Prathiba M Singh, while dealing with a lawsuit by a coaching centre and its owner against the “illegal” sharing of its teaching material on various channels on the platform under “masked” identities, stated that Telegram’s reliance on the laws of privacy and right to freedom of speech and expression was “completely inapposite in these facts and circumstances.” The judge said unless the identity of the operators of the infringing channels is disclosed, the plaintiffs would be rendered remediless for recovering damages.
“Reliance was placed by Telegram on the laws of privacy protection under Article 21 of the Constitution and Article 19(1)(a) of the Constitution, which protects the right to freedom of speech and expression. The same is completely inapposite in these facts and circumstances.
“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,” said the high court in its order dated August 30.
In response to Telegram’s submission of it being an intermediary under the Information Technology (IT) Act and thus being obliged to not disclose the details of the originator of the information, the high court opined that mere disabling or taking down of channels was an “insufficient remedy” as these channels were “clearly hydra-headed” and were surfacing one after the other owing to the ease with which they can be created”.
The provisions of the IT Act and the Rules, it added, have to be construed harmoniously with the rights and remedies provided to the copyright owners under the Copyright Act and even the IT guidelines do not, in any manner, obviate the duty of Telegram as a platform to take all effective steps required to protect the intellectual property rights.
Justice Singh also clarified that “merely because Telegram chooses to locate its server in Singapore, the copyright owners cannot be left completely without any remedy against the actual infringers in law.
“Unless and until the identity of the operators of these channels – who are ex-facie infringers of the Plaintiffs’ copyright – are disclosed, the Plaintiffs are rendered remediless for recovering damages. ‘Take down’ or blocking orders are merely token relief for the interregnum and without monetary relief of damages, coupled with mushrooming of infringing platforms, the copyright owner’s spirit to create and write may be considerably negated,” said the high court.
“The Supreme Court recognises that if there is a law in existence to justify the disclosure of information and there is a need for the disclosure considering the nature of encroachment of the right then privacy cannot be a ground to justify non-disclosure, so long as the same is not disproportionate,” the judge said.
The high court emphasised that if the protection of copyright is not evolved as per the changing times, it would have a chilling effect on the progressive initiatives taken by educators in sharing their materials and ensuring accessibility in the age of cloud computing and diminishing national boundaries in data storage, conventional concepts of territoriality cannot be strictly applied.
“In the facts and circumstances of the present case, Telegram-Defendant No.1 is directed 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,” “If there are any further list of infringing channels, the same be also submitted to Telegram within one week. The data relating to the infringing channels and the details as to the devices/servers/networks on which they are created, their creators, and operators including any phone numbers, IP addresses, email addresses, used for this purpose shall be disclosed by Telegram within a period of two weeks thereafter. The said information shall at this stage be filed in a sealed cover with the Court,” it ordered.
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