[This piece has been authored by Rajas Salpekar and Deshna Jain, students at the National Law University, Nagpur.]

Introduction

The pandemic has catapulted the world into an online mode. With social-distancing norms in place and nationwide lockdowns imposed; the world witnessed a shift to the online world. On one hand, this shift has given a boost to e-commerce while on the other it has given rise to the vice of digital piracy. Interestingly, the social media giant Telegram has become a hotspot for digital piracy. With a humongous worldwide user base of 200,000,000, four of its top 10 most subscribed channels deal in the circulation of pirated media.

In a recent case, Telegram was dragged to the Delhi High Court for disclosure of names of owners of channels that were illegally uploading the video lectures of the plaintiff – Neetu Singh. Although, the plaintiff did serve several notices to Telegram resulting in the blocking of certain channels, on observing the mushrooming of new copyright-infringing channels being operated by users functioning anonymously, the plaintiff ultimately approached the Delhi High Court with an application for disclosure of the names of creators of these channels.

This article shall discuss the case by explaining the concept of copyright infringement, followed by the concept of a john doe order, and shall then deal with the liability of Telegram to disclose the names and also the question of privacy of infringers.

Copyright Infringement

Copyright means the exclusive right to copy, reproduce and/or publish which usually rests with the author of the original work unless licensed. It acts as a safeguard of the rights of the author over its creation and thereby encourages creativity. In India, copyright is governed by the Copyright Act of 1957 (the 1957 Act), along with the Copyright Rules of 1958. As per Section 51 of the 1957 Act, a person is said to infringe copyright if he, without consent or license or any prior agreement, copies or reproduces the work in any unauthorized way and/or distributes or sells, or makes a public exhibition of the infringing material.

A copyright owner has several options for countering copyright infringement.  Section 55 of the Copyright Act, 1957 provides for civil remedies, under which one can file for an interlocutory injunction or claim damages, or get an anton piller/john doe order or any other remedy given under the act like the seizure of infringing copies and delivering them to the owner. Lastly, a criminal remedy is given u/s 63 which stipulates the punishment for copyright infringement for a period of minimum of six months along with a fine of a minimum fifty thousand rupees. Moreover, the offence under Section 63 of the 1957 Act has been recognized as a cognizable and non-bailable offence.

John Doe Order

In the present case, the suit had been filed against Defendant No.1 which is Telegram FZ LLC and Defendant No.2 John Doe, i.e., unknown persons. The term “John Doe” is “used to identify unknown/nameless defendants/infringers, who have allegedly committed some wrong, but whose identity is unknown to the plaintiff.” This is done, to render justice without delay and till the time such defendants are identified the court names them as “John Doe”.

It was under the reign of King Edward III of England that the world first saw the use of the term John Doe when the orders were issued in situations involving unnamed defendants. In India, the advent of such an order started from the case of Taj Television v. Rajan Mandal and received a colloquial term i.e., Ashok Kumar order. In this case, the plaintiff experienced revenue loss as a result of unauthorised and unlicensed transmission of its channel – Ten Sports, by some unlicensed cable operators. Not being able to identify the actual infringers from thousands of unlicensed cable providers, the Court historically issued a John Doe/Ashok Kumar order to penalize the unnamed cable operators.

John Doe or Ashok Kumar orders are ex parte injunction orders against unidentified or anonymous copyright infringers, thereby allowing search and seizure of their premises and devices. These orders get their validity from Order 39 Rule 1,2 read with Section 151 of the Civil Procedure Code, 1908. The John Orders can also be granted as a qua timet action i.e., even before the infringement has taken place. However, courts have been wary of passing orders which are incapable of implementation and require constant supervision.

In this case, the John Doe injunctions were proving to be inadequate as infringers were able to create new channels expeditiously, by taking refuge under the privacy services of Telegram. Thus, an application for disclosure of the names of the creators of these channels.

Decision of Court

In this case, the Delhi High Court allowed the application for disclosure of the name and ordered Telegram to disclose details of the emails, IP Addresses, mobile numbers, etc. used to upload infringing material.

In the following paragraphs, the authors have discussed the liability of Telegram to disclose names as well as the question of privacy.

Arguments raised by Telegram

Before the Delhi High Court, Telegram FZ LLC had argued that it is not liable to disclose the identity of the infringers as owing to clause 8.3 of Telegram’s Privacy Policy, the firm is not liable to disclose any information unless a court order confirms that the person concerned is a terrorist. It was also argued that as per the judgment of K.S. Puttaswamy, it is not permissible to disclose information unless the same is mandated by law. It was also argued that as Telegram has its servers based in Singapore, the Personal Data Protection Act 2012 of Singapore will govern the same and the courts will in Singapore and not India will be empowered to direct disclosure of the same & lastly Telegram has put forth the contention that as per Section 72A of the Information Technology Act, 2000 any disclosure of information in breach of a lawful contract i.e., the privacy policy between Telegram and its users will violate the law and constitute an offence.

Disclosure of names – Is Telegram liable to do so?

With the case of GVK Industries v. Union of India, it has been settled that the legislature would be deemed to necessarily have the power to make laws on extra-territorial aspects that may have an impact on or nexus with the nation-state. With that context, to hold that the applicability of the Information Technology Act 2000 (IT Act) will not extend to Telegram’s data servers in Singapore despite them having a direct impact on the plaintiff – a citizen of India would be to render the statute ineffective and such interpretation would fall foul of the principle of ut res magis valeat quam pereat.

Moreover, as the Delhi High Court had rightfully held that proviso to Section 81 of the IT Act makes it subject to the Copyright Act and therefore, even Section 72A could not have helped Telegram as even that would be subject to the Copyright Act, 1957 and so would the IT rules. In the present case, the High Court rightfully held that section 55 of the 1957 Act which stipulates claiming damages as one of the remedies of copyright infringement would become a toothless remedy if the identity of infringers is not disclosed to the plaintiff. Thus, Telegram was bound to disclose the names of copyright infringers.

Disclosure of names & Privacy of Infringers

The Delhi High Court very correctly opined that the right to privacy cannot be used as a shield by the infringers and also that there was very much a law i.e., the Copyrights Act 1957 which u/s 55 stipulates claiming damages as one of the remedies against the infringers which will be left as a toothless remedy if the identity of infringers is not disclosed. Therefore, the court said that the test under Puttaswamy was satisfied in as much as there was a law that mandated disclosure and that the data was sought for curbing violation of the law.  

 In addition to this, it is also very pertinent to note that the judgment of Puttaswamy has not labelled privacy as an absolute right but has subjected its encroachment to certain conditions viz. i) the existence of a law, ii) a legitimate state aim and iii) proportionality i.e., nexus between object sought and the method adopted. Therefore, the fundamental right to privacy could never have been used as a shield if the stipulated conditions are satisfied. 

Furthermore, the ‘absence of a law/legislation’, as argued by Telegram, could never have been an obstruction as with the judgment of Ritesh Sinha v. State of Uttar Pradesh, it has become clear that even in absence of a law, an order of a court can direct disclosure of personal information in cases of compelling public interests. Therefore, telegram could never have shied away from its responsibility of disclosing information.

However, the aspects of i) purpose limitation and ii) data minimization still needs to be addressed.

The principle of purpose limitation restricts the usage of data to the purposes for which it is sought. Although there can be no absolute means to keep a check on the same, one method to achieve the same is to keep the disclosed details from falling into the hands of appellants having some ulterior motives.

A reference in this regard needs to be placed on the ‘bona fides claims’ test referred to by the House of Lords in the case ofNorwich Pharmacal Co. & Others v Customs and Excise Commissioners which also dealt with the disclosure of names of third-party patent-infringers. In this case, the court had stipulated that disclosure of names is only allowed when the applicant has evidence of legal wrong done to it and only lacks the name, for if the names were to be disclosed without evidence, it would lead to “fishing requests by would-be plaintiffs who want to collect evidence”. This test was also adopted in other commonwealth jurisdictions.

Although the Delhi High Court did go into the question of evidence of infringement, neither in this case nor before has the ‘bona fide claims’ test ever received explicit recognition.

Further, the court, by ordering the data to be submitted in a sealed envelope has furthered the principle of ‘Data Minimisation’, which refers to the practice of limiting the collection of data to only as much as is required to fulfil the purpose. This practice would ensure that only as much data is given to the plaintiff as is required to file a suit against the infringers, thereby respecting the privacy of infringers.

Conclusion

Therefore, the Delhi High court, through its judgement rightly nipped the infringement in bud by directing disclosure of the details of offenders who were operating hydra-headed channels. This decision is also a major relief to all the educators whose video lectures are being pirated on secret and encrypted channels.