Case Title: Neetu Singh & Anr. V. Telegram FZ LLC & Ors.
The messaging app Telegram's regulations cannot be used as a shield by copyright violators, according to the Delhi High Court, solely because Singapore is the location of its physical server.
Justice Pratibha M. Singh continued by saying that Indian courts would have every right to force Telegram, which has extensive operations there, to abide by Indian law and orders made by them for the revelation of pertinent information pertaining to infringers. The bench said that under Singapore's Personal Data Protection Act of 2012, a recognised exemption to data privacy would be the disclosure of personal information for the purpose of any actions, including those involving copyright infringement.
"In view of this position of the law regarding copyright, compliance with local law, i.e., PDPA, cannot be an excuse for Telegram to justify the non-furnishing of the information relating to the channels through which dissemination of infringing content takes place as, such dissemination, would in the opinion of this Court, be violative of law, even under the laws of Singapore," it said.
The Information Technology Intermediary Guidelines and Digital Media Ethics, 2021 (IT Guidelines) do not, in any way, absolve Telegram as a platform from its responsibility to take all necessary and appropriate measures to protect IP rights, including the rights of copyright owners, the Court further emphasized. A lawsuit was filed by Neetu Singh and K.D. Campus Pvt. Ltd. asking for a permanent injunction against copyright infringement damages and other reliefs in relation to the unlawful distribution of their films, lectures, books, etc. The defendants in the lawsuit are Telegram and John Doe (various unknown persons).
Telegram has only objected to the award of relief to the extent that it is unable to divulge information on the channel founders or users due to the fact that the information is housed on its servers in Singapore and Singaporean law forbids such disclosure. Furthermore, according to Telegram, which is considered an intermediary under the IT Act, none of the requirements necessary for the intermediary to reveal the users' identities were met. The Court observed that users on Telegram were able to hide their identities by setting up new channels and using them in private mode.
Additionally, it stated that the High Court's jurisdiction cannot be overturned just because those who were sharing the copyrighted works used the Telegram app and that service stored its data on servers located outside of India.
Thus, it was determined that the copies of the Plaintiffs' works that were shared on Telegram channels would be considered infringements of their rights as described in Section 2(m) of the Copyright Act.
"The propensity of infringers to conceal and hide is the very reason due to which the provisions of the law are widely worded. The definition of "plate" includes "any device used for reproducing copies of the work." The definition of "infringing copy", as extracted above, is broad enough to cover electronic copies which are circulated on Telegram channels," the Court said.
The Court further stated that the remedy of damages for infringement would be entirely useless if infringers were allowed to conceal their identities using technological tools offered by messaging applications and their identities were not required to be disclosed.
Accordingly, the grant of injunction per se in the absence of commensurate damages or monetary deterrents would be a toothless relief. Such orders do not constrain the infringers from simply creating new infringing channels and even profit off of their infringement, till the time the plaintiff is able to seek an injunction for every new channel," the Court said.
Furthermore, the Court added, "Thus, 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. The protection of the same is integral to the public policy behind the legislation as well."
The Court stated that in this case, infringement must be "nipped in the bud" in order to avoid having to constantly issue injunction orders against channels that are mushrooming with infringing content.
"Pertinently, such production of details of infringing devices or persons or other sources is not a comment on Telegram's liability and does not derogate from safe harbour provisions. In fact, it is aligned with the view of Telegram's claimed role as an intermediary, which claims to act as a conduit of information," it said.
The Court further stated that neither the protection of privacy nor the protection of freedom of speech and expression could be invoked to avoid disclosure in response to a court order requesting information about the channel operators who are distributing materials that violate copyrighted works or the devices and other tools employed.
"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," it said.
The Court further stated that schools' "progressive attempts" to share their resources and ensure accessibility would be "chilled" if copyright protection did not change to reflect the times.
"In view of the above factual and legal position, in the opinion of this Court, merely because Telegram chooses to locate its server in Singapore, the same cannot result in the Plaintiffs' – who are copyright owners of course materials – being left completely remediless against the actual infringers, especially in order to claim damages and avail of other legal remedies in accordance with the law. If such an argument is accepted, in the current world where most dissemination happens through online messaging services and platforms, IP violations would go completely unchecked," the Court said.
The Court added, "Telegram is operating a messaging service in India which chooses not to locate its servers in India cannot divest the Indian Courts from dealing with copyright disputes or divest copyright owners from availing their remedies in Indian Courts. In the present age of cloud computing and diminishing national boundaries in data storage, conventional concepts of territoriality cannot be strictly applied. The dynamic evolution of law is essential to ensure appropriate remedies in case of violation of copyright and other IP laws."
The Court thus directed Telegram to disclose the details of the channels or 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. The Court added that in case there is any further list of infringing channels, the same be also submitted to Telegram.
"The data relating to the infringing channels and the details as to the devices/servers/networks on which they are created, their creators, 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 Court said, adding that the information shall be filed in a sealed cover.