Indian Courts Can Direct 'Telegram' To Disclose Info Of Copyright Infringers Using Its Platform, Server Being In Singapore No Defence: Delhi HC

The Delhi High Court has observed that copyright infringers cannot be permitted to seek shelter under messaging platform Telegram's policies merely on the ground that its physical server is in Singapore.

Justice Pratibha M Singh added that Indian Courts would be perfectly justified in directing Telegram, which runs its massive operations in India, to adhere to Indian law and orders passed by them for disclosure of relevant information relating to infringers.

The bench further observed that the disclosure of personal data for the purpose of any proceedings, which would include proceedings related to infringement of copyright, would be a recognized exception to data privacy under Personal Data Protection Act, 2012 of Singapore.

"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 Court further added that the Information Technology Intermediary Guidelines and Digital Media Ethics, 2021 (IT Guidelines) do not, in any manner, obviate the duty of Telegram as a platform to take all effective steps required to protect IP rights, including rights of copyright owners.

The Court was dealing with a suit filed by one Neetu Singh and K.D. Campus Pvt. Ltd. seeking permanent injunction restraining infringement of copyright, damages and other reliefs in respect of unauthorized dissemination of their videos, lecture, books, etc. The suit was filed against Telegram and John Doe (various unknown persons).

Telegram had only opposed the grant of relief to the extent that it cannot share the data relating to the creators or users of the channels, as the said data is stored in its data servers in Singapore and the law of Singapore prohibits such disclosure. Moreover, as per Telegram, it being an intermediary under the IT Act, none of the pre-conditions which permit the intermediary to disclose the identity of the users, as per the IT Guidelines were satisfied.

The Court noted that the users on Telegram were creating new channels and operating the same in private mode, hence they were able to mask their identity.

It also opined that merely due to the fact that the persons disseminating the copyrighted works were using the Telegram app and the said app retained its data outside India on its servers, the jurisdiction of High Court cannot be ousted.

It was thus observed that copies of the Plaintiffs' works, which were circulated on the Telegram channels, would constitute infringing copies of the works as defined under sec. 2(m) of the Copyright Act.

"The propensity of infringers to conceal and hide is the very reason due to which the provisions of 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.

It added "It is thus clear that the devices of the channel operators, which are permitting and enabling such dissemination and communication, would constitute "plates" within Section 2(t) of the Act and they would constitute "duplicating equipment"."

The Court also said that if infringers are permitted to mask their identity through technological means provided by messaging apps, and their identity is not directed to be disclosed, the remedy of damages against infringement would be rendered completely nugatory.

"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.

It 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 said that in the present matter, infringement has to be "nipped in the bud" without which Courts would have to continue to repeatedly pass injunction orders against mushrooming channels containing 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 added that disclosure pursuant to an order passed by a Court of law of the details of the channel operators who are disseminating materials infringing the copyrighted works, or the devices and other gadgets used, cannot be shielded under the grounds of protection of privacy or protection of freedom of speech and expression.

"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 also said 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 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 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.

It 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 are 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.

Case Title: NEETU SINGH & ANR. v. TELEGRAM FZ LLC & ORS.

Citation: 2022 LiveLaw (Del) 822

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