“The injunctions being granted in India are very generalised and broad. For instance, all it states is that the court is preventing defendants from transmitting copyrighted content. It doesn’t set any limitations, such as requiring the plaintiff to identify specific URLs to be blocked, instead of the whole website,” says Gupta.

However, Tandon points out, Reliance Entertainment has not been asking ISPs to block entire websites. “We are asking ISPs and websites to not allow our content to be streamed via their service. I don’t know why ISPs choose to block entire websites,” he says.

ISPs are not forthcoming in explaining why entire websites are being blocked. “Access to certain sites has been blocked by Airtel pursuant to and in compliance with court orders,” is all an Airtel spokesperson is willing to reveal.

According to Gupta, entire websites are being blocked either because copyright owners demand this, or because ISPs are trying to avoid potential liability. “The fault lies with the legislative procedure. If the ISP is afraid and blocks the entire website, it shows that our laws are not good enough to protect its interests,” says Gupta.

In either case, the present system of functioning is too ham-handed and is like using a butcher’s knife where a surgeon’s scalpel is needed. “Courts should be strict in monitoring how the plaintiff is using the John Doe order. But for things to change, we need one of those unnamed defendants to come before the court and express how the order was used against him,” adds Gupta. Will a John Doe please stand up?

The Indian Journal of Law and Technology in association with the Centre for Internet and Society, Bangalore is organising the 3rd IJLT-CIS Lecture Series at the National Law School of India University, Bangalore. The lecture series will be spread out over the course of the year and will include eminent speakers who will talk with the students and other interested persons on their topics of expertise.

To kick off the lecture series, Professor Rohan Samarajiva will deliver the inaugural lecture on Tariff Regulation in South Asia.

Tariff regulation has in the recent past attracted the attention of the Telecom Regulatory Authority of India and the Telecom Dispute Settlement Appellate Tribunal, as well as the Department of Telecom at the Union Ministry of Communications. India has a burgeoning and competitive cellular services provider market, and tariff regulation has far-reaching impact on the industry. Moreover, as aware consumers of mobile telephony and data services, this is an issue that is relevant for all of us.

Prof Samarajiva is a pre-eminent figure in policy-making and academia on the subject of information and communications technology, and this is an excellent opportunity to get his insights on the crucial topic, not just from an Indian perspective but from a pan-Asian viewpoint. He has taught at universities in USA, Netherlands and Sri Lanka and is currently Chairman & CEO, LIRNEasia, an ICT policy and regulation think tank active across 12 emerging Asian economies. He is also a Board member at Communication for Policy Research – South, which is a capacity building initiative to develop Asia-Pacific based policy initiatives on ICT policy regulation among junior to mid level scholars. His full profile can be accessed at http://lirneasia.net/about/profiles/rohan-samarajiva/

The lecture will be organised at NLSIU, Bangalore on Sunday, the 27th of May, 2012 from 5.30 pm to 6.30 pm. You are requested to take your seats by 5.20 pm. The hour-long session will include both a lecture and an interactive session with the speaker. Interested persons are requested to register for the lecture series by sending in an email to editorialboard@ijlt.in

The address of the venue is

National Law School of India University

Jnanabharati Road, Nagarbhavi

Bangalore – 560072

Google maps location: http://g.co/maps/ppwcr

Follow our event page ‘3rd IJLT-CIS Lecture Series’ on Facebook to remain updated!

Yes, the events section is broken and I will try to fix it soon.

Cold Comfort for Internet Intermediaries
Ever since the judgment in Super Cassettes Industries v. Myspace Inc. was pronounced by the Delhi High Court, the liability net for Internet companies which facilitate the transmission, hosting and distribution of user generated content increased tremendously. The court in the abovementioned case ruled that the safe harbours contained under Section 79 of the Information Technology Act, 2000 did not extend to cases of copyright infringement and would not exempt their liability. Here the newly christened Section 52(1)(b) and Section 52(1)(c), provide Internet companies with some comfort.

Section 52(1)(b), provides that transient or incidental storage of works made in the technical process of electronic transmission or communication to the public shall not constitute an infringement of copyright. Section 52(1)(c) further provides that the transient and incidental storage for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy also shall not constitute an infringement of copyright. Broadly, this provision would provide protection to Internet intermediaries only when they are providing transient or incidental storage; they have reasonable grounds for believing that such storage is not of an infringing copy and the rights holder has not expressly prohibited it. It is not out of place to state, that the phrasing of the section does leave much to desire in terms of precision and specificity.

The proviso to Section 52(1)(c) further complicates matters when it states that, when such a person gets a written notice from a rights holder that such storage is an infringement then that person shall refrain from facilitating the access for a period of twenty-one days. This take down continues beyond the twenty-one days if the rights holder has a judicial order which records such. If the rights holder fails to get such a court order within twenty one days of the notice then the access is restored. This is obviously a provision which will promote litigation immensely and if the objective was to keep Internet intermediaries out of court, that has surely not come out in the law.

It is also relevant to note that the section does not provide for the time period within which the Internet company has to act. The lack of such specificity and a fully fleshed notice and take down procedure will only make more copyright infringement litigation rise. Unless the Government sees an increase in stamp cost earned through the filing of such Suits as a net benefit, there is no excuse for such legislative lethargy in omitting to draw up a detailed notice and take down provision.

Do send in links to us if you feel we have missed something.

The objective is to keep up to date and suggest good readings in this sector and not to report real time news. Do give your suggestions for improving it and whether you find it useful.

1. India’s proposal to the UN on establishing a Committee for Internet Related Policies

In October 2011, India proposed the establishment of a United Nation Committee for Internet-Related Policies (UNCRP) [available here]. This proposal is slated to come up for discussion later this week in Geneva [Hindu Reports].The proposal, if accepted will shift the present administration of the internet from ICANN to the UNCRP [Internet Governance Project].

Critics fear this will shift the present system of a multi-stakeholder model to one where governments will have primacy [lessig on the proposal]. However some say that at this stage the fear is misplaced [Medianama interviewing Pranesh Prakash from CIS]. Recently IT for Change has released a joint statement on the concerns of civil society on this consultation [link] and Rajya Sabha MP Mr. R. Chandrashekhar has written to the Prime Minister asking for its withdrawal [PDF link to his letter].

2. Motion to annul the IT Rules

Ever since the Information Technology (Intermediary Guidelines), 2011 [link to the rules] were passed there was considerable talk of them being contrary to our fundamental right to freedom of speech and expression [read the PRS legislative summary on them here; SLFC's analysis of the Rules].

Due to the effort of certain internet advocacy groups such as CIS and SLFC.in, an annulment motion has been moved to them in the Rajya Sabha which first got listed on Friday, May 11, 2012  where due to disruptions on an allegedly objectionable cartoon on B.R. Ambedkar the house was adjourned for the day and the discussion could not take place [link].

Thereafter the motion was again listed on Thursday, May 17, 2012 for discussion [link]. Mr. Arun Jaitley made a speach critsing the rules and much of the opposition parties followed. [Video of Arun Jaitley's speech, Uncorrected transcripts of the debate morning, afternoon, evening]. However in the end the annulment motion was defeated by a voice vote with an undertaking by Mr. Kapil Sibal that the government will work to evolve a consensus on the Intermediary Rules [Legally India Reports].

In connection with this, some have even proposed systematic processes to ensure third party deliberation and oversight of subordinate legislation [Nick Robinson's article, The red-tape rules in Business Standard]. Having seen the inefficient manner in which subordinate legislation is almost never debated and then is deemed to be approved by parliament, this is an eminently sensible suggestion.

3. Injunctions and Blocks

This month the Delhi High Court has passed two injunctions making reference to the Information Technology (Intermediary Guidelines) Rules, 2011 [link to the rules]. Curiously both cases concern god men, with the first one being passed in favor of Nirmal Baba and the second one being issued in favor of Sri Sri Ravi Shankar [Nirmal Baba Link | Sri Sri Ravi Shankar link]. Both cases concern allegations of defamation and both make blogging platforms as parties to the litigations.

Beyond the take down injunctions, the trickle of John Doe orders has now become a flood. Medianama reports that a John Doe order from the Madras High Court granted to Copyright Labs, Chennai has resulted in widespread blocks on file sharing websites on several major ISP’s including Airtel and Reliance. This also includes vimeo. Some digging up has shown that the case in which the order was passed is titled as Creative Commercials v. Bharat Sanchar Nigam Limited – case number 358/2012, though others state it is another case in the Madras High Court. We have written a long blog post on the who dunnit [ILTB Post :ashok kumar is a habitual offender] and also called for filing of RTI’s with the DoT to ensure it was not a rogue executive order which wrecked havok [ILTB Post: Why a RTI will be more effective than taking down government websites]

4. Privacy watch

Ont the privacy front, there is some activity regarding the revival of the DNA profiling bill [Saikat Dutta in DNA reports]. A 2007 version of the bill is publicly available [PDF Click here] on which CIS has done extensive analysis [Click here].

Medianama also reports that the Indian government has written to various ISP’s asking them to implement capabilities for real time interception of VOIP communications [Read here]. There also seems to be some discord between the NTRO and the NIC with regard to the alleged hacking of thousands of government email ids for which a joint intelligence committee meeting has been called [Mint Report].

Chetan Gupta, a lawyer from Delhi has prepared a RTI and filed it with the DOT (Department of Telecom) asking whether any Order was issued by it to block Piratebay, Vimeo, Pastbin and other websites. Responses to such a RTI will increase transparency and bring clarity as to the status of the blocks, since Reliance Communications last week stated it has blocked the websites as per a DOT Order.

Such responses will also be useful for lawyers thinking of approaching a Court to challenge the sorry state of affairs.

Click here for the sample RTI. 

Additionally, I also strongly urge users to send an email to customer care asking them to disclose the Order of the High Court under which the blocks are being carried out. Kindly also ask them to disclose the letter from the lawyers of the Plaintiff which asked for the website blocks. You can use the format below.Kindly note the information in brackets i.e. “[]“, has to be filled in by you.

To: response@airtelmail.in, 121@airtelindia.com, airtelpresence@airtel.in

[Insert todays date]

Subject : Access to Vimeo.com

Dear Sir/Madam,

I am a subscriber with Airtel fixed line and broadband services holding account number ____________ in the name of ___________ at ____(insert address here)_. On _[insert date and time]_ I attempted to access the website www.vimeo.com from my above mentioned internet connection, however the I could not access the same and instead of the website a message was displayed which stated, “Access to this site has been blocked as per Court Orders”.

The denial of access to this website has caused me great inconvenience as I regularly access www.vimeo.com.

I kindly request you to provide me with the following information:

(a) The Case number, the name of the High Court and the date of the Order in compliance with which access to www.vimeo.com is being blocked.

(b) A copy of the Order in compliance with which access to www.vimeo.com is being blocked.

(c) Any letters or correspondences sent by lawyers or any other parties asking for the blocking of www.vimeo.com and any other websites.

Kindly provide such information at the earliest.

Kind Regards

[Insert your name]

[Insert your address]

now you see him

now you dont!

As of today Vimeo, Piratebay, Pastebin and many other websites have been blocked by indian ISPs. The blocking of such filesharing and video streaming websites has caused tremendous discomfort to internet users in India and even prompted Anonymous to begin denial of service attacks against websites of the Supreme Court (it has since ceased it), the All India Congress Committee and Copyright Studios. The blocks started out with users of Reliance internet services reporting blocks on the Pirate Bay where a message that stated, “the site has been blocked as per instructions from the Department of Telecom”. (Read on Medianama | Mint)

This was followed up with reports later in the week as to how Airtel was now blocking not only filesharing websites such a piratebay but also completely legitimate video streaming websites such as vimeo. Airtel users who attempted to visit these websites were informed that, “access to this site has been blocked as per Court Orders”. (Read on Medianama)

Medianama is compiling a list and reporting as to the status of these blocks.

The abuse of ashok kumars and john does

This is a dangerous trend which many pointed out last year when the first few john doe or ashok kumar orders were sought to be applied to entire websites as opposed to specific pages and links which contained copyrighted content posted without the authorisation of the owner. I stated that such orders are being abused by plaintiffs and broadly worded cease and desist notices are being sent by lawyers working for movie producers who have obtained these orders (ILTB Post extracting one such legal notice).

In a previous post, I stated that such orders only are anticipatory with regard to the potential infringement and the only laxity being allowed to the Plaintiff is the exemption from identifying the potential infringers. This is as the Plaintiff anticipates large scale sporadic infringement and it may be too late by the time it approaches a court and gets the injunction. Here it is reasonable for it to have the injunction already in hand and apply it when it sees an infringement.

A John Doe/AshokKumar injunction does not in any way allow the Plaintiff to ask parties to refrain from anything till the point they infringe. Hence, the Plaintiff may apply the injunction to any person, only after such a person becomes an infringer. Even then its right under the injunction only extends to the specific part of the activity which is infringing. Hence an entire website cannot be blocked for one offending link covered by the injunction. (ILTB Post on the analysis of john doe injunctions).

However now Plaintiffs have started making ISP’s themselves primary parties to such litigation’s. The latest blocks are the result of orders which emanate out of the Madras High Court which clearly list the ISP’s to be parties themselves. They are made as principal defendants and appear right up the ladder starting from Defendant No. 1. In effect, the primary infringement is now being complained against the ISP and not against the file sharing website or the user who ultimately may share the blame. Is this the result of the holding of the Hon’ble Delhi High Court in Myspace v. Super Casesstes Industries one does not know now, but I think that the ruling in the coming days will cause more headache for intermediaries who face issues of copyright compliance in India.

Whodunnit ?

Since Reliance displayed a message that it had blocked the webpage as per orders of the DOT apprehension the first apprehension which arose was that this was done as per an executive order or instructions from the DOT to Reliance. However, in the past the DOT has denied that it ever issued any such order for the blocks or it sent any communication to this effect. This has further been confirmed by newsreports which laid the blame on john doe orders recieved from courts (these were obtained by Reliance BIG Pictures, ILTB post on it here). Hence not only was this vague order leading users on a wild goose chase to know why their access had been stopped and which order DOT had passed, but on the other hand constituted misdirection.

An article in Mint confimed this, a day after the blocks were first reported:

Sanjay Tandon, vice-president, music and anti-piracy, Reliance Entertainment, said the company has got a so-called John Doe order from the Delhi high court which directs all Internet service providers (ISPs) to block video-sharing websites, this time not just for a single release but for most big-budget films this year.

After this news report came out I searched on the Delhi High Court website, for any filings by Reliance Big Pictures or Reliance, no recent filings or orders showed up. This was strange considering that such injunctions are granted on the day the case is first filed and heard by the Court. It was also surprising for me that as per Sanjay Tandon, they got the Order not only for one movie but, “his time not just for a single release but for most big-budget films this year.” This way such orders are being applied this would mean a perpetual block order.

After this the Airtel blocks started. Medianana quickly reported that they were emanating from an order passed by the Madras High Court. The post stated that:

We have been informed that the block has been imposed following a John Doe order taken byCopyright Labs, Chennai, from the Madras High Court, for preventing piracy of Tamil Films Dammu and 3. Copyright Labs CEO, Harish Ram, has confirmed the same to MediaNama and we’ve requested him for a copy of the order. We had reported about the John Doe order taken by the producers of 3.

I quickly checked up the Madras High Court website for the party names of Copyright Labs, quickly realized that the Plaintiffs in such suits are usually the producers so I quickly searched for the producers of Dammu and it showed up the case of M/s Creative Commercials v. Bharat Sanchar Nigam Limited (Case Number 358/2012, last listed on 28th April, 2012). I thought I hit the jackpot, but I could not be sure since the orders passed in the case were not available on the court website.

Later on the in the day, an order dated 29.03.2012 issued for the movie 3, in a case titled as R.K. Productions v. Bharat Sanchar Nigam Limited (Case No. 230/2012) appeared online. Since the Order was available in this case, I thought probably the blocks were in this case.

I am still not sure. The Creative Commercial Case has been filed later in time when the blocks started. Moreover if the plaintiffs allready had the John Doe injunction in R.K. Productions since 6 weeks why did the blocks only start this week ? was i missing something ? was I in one of Frank Kafka’s unfinished manuscripts, one which had a thousand doors leading to the same dark cellar.

The point I am making is that blocking a website is as much as a function of safeguarding a private right as much as it is interfering with the right to access of the general public. (ILTB Post on how injunctions cause public loss). There is certainly a public interest in content which is blocked by the state. Which is why blocks or bans when done by an executive order is done by the authority some authority under a provision of law and published and made publicly available in the official gazette. However, no such limitations are presently prescribed when ISP’s block websites pursuant to court Orders.

Reliance has said it blocked as per a DOT order, Airtel says its blocked it as per a High Court Order. Airtel does not even reveal which state High Court passed the Order. When one of my friends wrote to them asking for details of the Order, they refused to provide any details on it. Is this a super injunction ? What are they afraid of ?

The rules which exist with regard to Blocking of Websites namely the Information Technology (Procedure And Safeguards For Blocking For Access of Information By Public) Rules, 2009 state that websites can be blocked by judicial orders however do not mention any further formalities as to disclosure by the DOT or ISPs to Users.

Is this fair ? Is this reasonable ?

Things are certainly getting out of hand. Interim injunctions are meant to preserve the status of the parties and prevent the frustration of the result of a legal proceeding. Interim injunctions are not meant to create a new status and provide the Plaintiff with protection with which it can bully our timid and cowering ISP’s into meek compliance under the threat of contempt of court for not obeying court orders. Its time they challenged these Ashok Kumar choke-a-blocks injunctions.

An interesting development related to the use of social media for spamming is a recent lawsuit filed by Twitter against spammers and spam tool providers using the service. The basis of the law suit is the violation of Twitter’s Terms of Service (ToS).

In the simplest sense ‘Terms  of Service’ (ToS) is a set of rules that a user must agree to in order to use any service. This agreement creates a binding contract, the terms of which the user must comply with.

Traditionally social media “platforms have utilized federal laws such as CAN-SPAM, which prohibits sending misleading electronic communications, to punish the most egregious spammers”.

What makes this current lawsuit notable is that Twitter is suing each of the spammers for a breach of contract by violating the terms of the Twitter ToS and is additionally seeking damages for the breach. That said, in the past there have been other tech and media platforms that have filed suit against spammers. Facebook, Google and Craigslist are some of the leading examples.

If Twitter succeeds in this law suit it will set a clear precedent that (i) Terms of Service of a media platform form a binding agreement and a user is liable for any breach (ii) Violation of the terms can result in the user being liable for monetary damages.

As the world wide web and related services/companies grow, so will the proliferation of spam and other such activities. In this environment, having clear policies and legal documentation regarding the use of services by the end user, is a good start towards the protection of company interests.

All of this however puts the onus on the users to proactively read all the policies. Go on then, read the many pages before you click “I Accept”.

Last week Medianama and Mint reported that following the injunction granted to Nirmal Baba which we wrote on here, the Delhi High Court has passed a similar ex-parte ad-interim injunction restraining certain defendants from publishing content alleged to be defamatory about Sri Sri Ravi Shankar and the Art of Living.

The Injunction has been passed in case for civil defamation titled as Vyakti Vikas Kendra,India Public vs Jitender Bagga. The other parties to the case include Google, since the content which was alleged to be defamatory is published on blogspot.com, which is a blogging platform owned by it.

The Order dated 09.05.2012 which granted the injunction again makes substantial reliance on the Terms of Service of Blogger and the Information Technology (Intermediaries Guidelines) Rules, 2011.

The is the second reported injunction which has relied substantially on the Information Technology (Intermediary Guidlines) Rules, 2011. Through repeated practice we may see a trickle down effect with the rules being reinforced through successive court decisions.

We have seen a similar pattern in John Doe Injunctions, where now virtually every major Bollywood release coincides with a john doe order and the blocking of file sharing websites.

The High Court Decision

Avnish Bajaj to quash the proceedings had originally approached the Delhi High Court. His petition was partly allowed by the High Court, which quashed proceedings under Sections 262 and 264 of the IPC however maintained the charges under Sec. 67 readwith Sec. 81 of the IT Act.

The Delhi High Court reasoned that the IPC does not recognise the concept of automatic criminal liability attaching to the director where the company is not made an accused. The Court noted that not even a prima facie case for the offences under Sections 292/294 of the IPC was made out against Avnish Bajaj, with the charge sheet only seeking to implicate him in his designation as MD of Bazee and not in his individual capacity.

However, with regard to Sec. 67 which contains the substantive offense for publishing pornography, the Court reasoned that since it had a deeming provision for corporate liability under Sec. 81, the trial with regard to this charge could proceed.

It categorically noted that:

“(e) A prima facie case for the offence under Section 67 read with Section 85 IT Act is made out against the petitioner since the law as explained by the decisions of the Supreme Court recognises the deemed criminal liability of the directors even where the company is not arraigned as an accused and particularly since it is possible that BIPL (EIPL) may be hereafter summoned to face trial.”

Appeal to the Supreme Court

As it turns out BIPL (Bazee Internet Private Limited), which is the company who owned Bazee.com before it was transferred to eBay was never arraigned as an accused. Hence, the limited issue which the appeal in the Supreme Court came to be concerned with is the finding of the High Court on deemed criminal liability. Put another way the question which was posed in the Case was, whether an official of a company can be made an accused without the company itself being made an accused.

In reaching its decision the Supreme Court first studied previous holdings in C.V. Parekh, Anil Hada, Sherotaan Aggarwal. It noted that the holdings in Anil Hada and Sherotaan Aggarwal could not be sustained as they were 2 bench judgments and were contrary to the purport of C.V. Parekh which is a 3 bench judgement. In a sense the court noted both of them as per incuriam.

Then the Court held that the 3 bench judgment in C.V. Parekh is the correct proposition of law inasmuch when the principal offence has been alleged against a company and it is not made an accused then the directors and the employees to whom the vicarious liability cannot be tried. Interestingly much of the analysis of the court was based on interpretation of Secs. 141 and 142 of the Negotiable Instruments Act, which is then supplanted to Sec. 81 of the IT Act.This was possible because these provisions were similarly worded, or as lawyers like to call it mutatis mutandis.

Some Thoughts

Firstly, why was no cross appeal filed by the Government against the Order of the High Court under which the prosecution under secs. 262/264 of the Indian Penal Code was quashed ? Certainly there does not seem to be any good reason for not appealing the decision given how enthusiastically and without any inhibitions of propriety the State locked up the petitioner in jail.

Also, the verdict wherein it omits a discussion of Sec. 67 of the IT Act or Sec. 79 which deals with intermediary liability comes as a disappointment for many who would have wanted clarity on intermediary liability. This is given that the Avnish Bajaj was the first high profile case on intermediary law before the Supreme Court. However, seeing at how the case was decided by the High Court, the grounds of challenge before the Supreme Court would understandably and fairly be limited.

In my view this case would have a limited impact on the Vinay Rai-Google/FB High Court litigation. This is because I anticipate that the companies themself have been made an accussed. If not then the holding in this case should in all likelyhood may assist the quashing petitions filed by Google and Facebook.

While we are discussing the Vinay Rai case, there is one more case pending in the Supreme Court which in my view should ivolve a study of intermediary liability. The case titled as Google India Pvt. Ltd., vs M/S.Visaka Industries Limited, involves a high court refusing to quash charges against Google. I have previously blogged about this here.

Whatever be said, given the amount of litigation on intermediary liability its only a matter of time before we have some authoritative pronouncements on the subject.