Over five years ago, a Single Judge of the Delhi High Court indicated that MySpace had committed infringement against T-Series (in a decision which was not especially easy to comprehend). An interlocutory appeal was filed and on December 23, 2016, the legal position changed: a Division Bench of the Court issued a decision which drastically diverged from the findings of the earlier 2011 decision.
The Division Bench summarised its own findings in Para. 68 of its decision stating:
"...it is held as follows (a) Sections 79 and 81 of the IT Act and Section 51(a)(ii) of the Copyright Act have to be read harmoniously. Accordingly, it is held that proviso to Section 81 does not preclude the affirmative defence of safe harbor for an intermediary in case of copyright actions. (b) Section 51(a)(ii), in the case of internet intermediaries contemplates actual knowledge and not general awareness. Additionally, to impose liability on an intermediary, conditions under Section 79 of the IT Act have to be fulfilled. (c) In case of Internet intermediaries, interim relief has to be specific and must point to the actual content, which is being infringed."
In copyright terms, the decision of the Division Bench granted significant protection to intermediaries. What was particularly surprising and welcome about it, however, lay hidden in Para. 55: the Court clearly recognised the right to privacy and the possibility of the right being adversely impacted by certain mechanisms of protecting copyright. It stated:
"To attribute knowledge to the intermediary industry would mostly likely lead to its shutdown, especially where content is of this magnitude and size. Closure of website and business would inevitably follow, for instance, if messenger services like Whatsapp or social media portals like Facebook or Twitter, (given the number of users registered with these service providers as well as the volume of information being broadcasted/ “forwarded”), were held liable for each infringement. The greater evil is where a private organization without authorization would by requirement be allowed to view and police content and remove that content which in its opinion would invite liability, resulting in a gross violation of the fundamental right to privacy."
This is (at least) the second time in the space of less than a month in which the Delhi High Court has articulated opinions which potentially save persons from liability for content which others post. In Ashish Bhalla v. Suresh Chawdhary, CS(OS) No.188/2016, the Delhi High Court held (on November 29, 2016) that WhatsApp group administrators are not liable for other group members' defamatory posts. In doing so, the Single Judge who issued the decision stated in Para. 17:
"...I am unable to understand as to how the Administrator of a Group can be held liable for defamation even if any, by the statements made by a member of the Group. To make an Administrator of an online platform liable for defamation would be like making the manufacturer of the newsprint on which defamatory statements are published liable for defamation. When an online platform is created, the creator thereof cannot expect any of the members thereof to indulge in defamation and defamatory statements made by any member of the group cannot make the Administrator liable therefor. It is not as if without the Administrator‟s approval of each of the statements, the statements cannot be posted by any of the members of the Group on the said platform."
While the Ashish Bhalla decision did not deal with intermediaries, these decisions appear to indicate that the Court does not intend to have technology and law be at loggerheads, or to have the rights of individuals be given short shrift.
[Note: In this matter, the Division Bench of the Delhi High Court attempted to balance rights; this is indicated by Para. 67 of the decision which contains the following text: "The court has – as always to tread a delicate balance between the Scylla of over protection (of intellectual property and privileging it in an overbearing manner) and the Charybdis 9 of ineffective or under-protection, of IP rights: both of which chill and kill creativity, in the final analysis, harmful to society." There's more, separately, on the argument that the Indian Copyright Act itself intends to have the rights of various stakeholders be balanced here: Copyright Law, Balance, and the Expression of Non-Partisanship.]
[Note: In this matter, the Division Bench of the Delhi High Court attempted to balance rights; this is indicated by Para. 67 of the decision which contains the following text: "The court has – as always to tread a delicate balance between the Scylla of over protection (of intellectual property and privileging it in an overbearing manner) and the Charybdis 9 of ineffective or under-protection, of IP rights: both of which chill and kill creativity, in the final analysis, harmful to society." There's more, separately, on the argument that the Indian Copyright Act itself intends to have the rights of various stakeholders be balanced here: Copyright Law, Balance, and the Expression of Non-Partisanship.]