Neetu Singh & Anr. v. Telegram FZ LLC & Ors.

Neetu Singh & Anr. v. Telegram FZ LLC & Ors.

2022 SCC Online Del 2637

Brief Facts:

• Plaintiffs filed the suit seeking permanent injunction restraining infringement of copyright, damages and other reliefs in respect of unauthorised dissemination of Plaintiffs’ copyrighted materials.
• Defendant No. 1 is operator of is a messaging platform which enables transmission of text, audio files, video files, images, documents etc. The allegation is that the Plaintiffs’ copyrighted works are being disseminated unauthorisedly through various Telegram channels.
• Being made accessible to students at discounted rates, the Plaintiffs also found that the books of the Plaintiffs were being circulated in PDF formats on Telegram channels.
• As per Plaintiffs, as per the Privacy Policy of Telegram any abuse on Telegram channels can be reported. On invocation of the process, Defendant No. 1 took down some infringing channels but some infringing channels continued to exist (as new channels were created almost instantly).
• The Plaintiffs then, in view of the repeated channels over which dissemination of the infringing copies of the copyrighted works was being carried out, approached this Court by way of the present suit.
• The suit was first listed on 28^th July, 2020, on which date, after hearing the parties, an ad-interim order was passed on statement of Defendant No. 1.
• The said order was modified on 23^rd September, 2020 directing to take down the some other channels irrespective of the fact whether they are private or public channels.
• Thereafter, in the said suit, an application was filed by the Plaintiffs under Order XI Rule 10 CPC, seeking discovery of the details of the persons who are operating these channels. The present decision is on the said application.

Plaintiffs’ Contentions:

• As per Telegram’s privacy policy, in terms of clauses 3.3.5, 5.3, 8.3 and the FAQs attached, it is mentioned that if there is any violation of law, Telegram is liable to remove such channels and also disclose the information of the persons and channels.
• Further, while the channels that were impugned earlier in the suit, new channels by adding some small modifications in the names of the channels continue to be created. The identity of the persons disseminating the infringing materials ought to be disclosed for the Plaintiffs to avail remedies.

Defendant No. 1’s contentions:

• The interim arrangement directing Telegram to take down the impugned channels is sufficient to protect the interest of the Plaintiffs.
• As per the privacy policy, in clause 8.3 it is clear that until and unless a person is expected to be a terror suspect the disclosure of the subscriber information cannot be made.
• In Justice K.S. Puttaswamy v. Union of India & Ors., (2017) 10 SCC 1, unless and until a law requires disclosure of such information it is not permissible to directly disclose the person operating the channels and the privacy would be protected by Article 21.
• Rule 3(1)(d) and Rule 4(1)(2)  of the Information Technology Intermediary Guidelines and Digital Media Ethics, 2021 (hereinafter “IT Guidelines) dictate that even a court order cannot be passed directing disclosure of the basic subscriber information.
• Telegram has servers in Singapore which has encrypted data. Accordingly, decryption of that data would not be permissible except as per the laws of Singapore. Reliance is placed upon the Personal Data Protection Act, 2012, of Singapore. Under the said law, Telegram may reveal certain information upon direction by a “Court”, since the “Court” in terms of the Interpretation Act of Singapore, 1965, would only mean a Court based in Singapore, a Court in India would not be empowered to direct disclosure of the information relating to the subscriber who may be running the allegedly infringing channels.
• Section 72A of the Information Technology Act, 2000 provides that any disclosure of information in breach of a lawful contract between Telegram platform and the creator of the impugned channels would also be contrary to law and could constitute an offence.

Plaintiffs’ Contentions in Rejoinder:

• Reliance on Singapore law would be inappropriate as this Court would be empowered to pass directions for a mobile application operating in India.
• The laws of Singapore may apply in the context of a request being made by any private party to Telegram, to disclose information. However, this would not apply if a Court order is passed.

Court’s observations and analysis:

• The short issue is whether Telegram can be directed to disclose the identity of the creators of the infringing channels. This Court, first, notes that the fact that the infringing content was disseminated on various channels on the Telegram app, is not in dispute. Such channels being blocked by Telegram are creating new channels and operating the same in private mode that allows them to mask their identity. Repeated blocking is providing to be insufficient. Hence, the present application.  
• Merely due to the fact that the persons disseminating the copyrighted works, are using the Telegram app and the said app retains its data outside India, on Telegram servers, the jurisdiction of this Court cannot be ousted.
• Infringement of Copyright is a serious matter. The propensity of infringers to conceal and hide is the very reason due to which the provisions of law are widely worded.
• 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”. Therefore, both civil and criminal Courts in India would always be vested with jurisdiction to adequately deal with dissemination of infringing material through such devices and merely because the messaging service has its server located abroad, the same cannot result in the infringer escaping from the consequences of infringement.
• In the present case, the only party that is in possession of the information relating to the devices used, IP addresses used, channels created, number of users, identity of the devices through mobile numbers etc., is Defendant No.1 – Telegram.
• In the facts of the case, It is nigh possible that the devices circulating the infringing content and the  persons running the infringing platforms and channels are  located in India
• Cloud computing being the norm these days, as also pointed out by Telegram in its Privacy Policy at Clause 4, even if the data is stored in a physical structure outside India, the same is accessible to the company in other jurisdictions including from India. In any case, it is also relevant to note that Telegram is actively making its services available in India and now even earning revenue from India, by its Premium services. In this regard, under the IT Guidelines 2021 relied upon by Telegram, there is an obligation on it to appoint necessary grievance officer(s) in India.
• Provisions of Personal Data Protection Act, 2012, of Singapore permits disclosure of personal data for the purpose of any proceedings, which would obviously include proceedings related to infringement of copyright.
• Fundamental rights would not come to the aid of protection of personal data related to the infringers, as it is only the “processing” of data, which can be stopped for protection of fundamental rights. 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. Disclosure of such data pursuant to a Court order would not fall in the definition of “processing”, which is the only activity that is restricted by the infringing users’ fundamental rights. Telegram’s own privacy policy does not recognize the defence, which has been canvassed before this Court.
• In so far as Telegram’s submission regarding the Plaintiffs not providing verifiable proof that their copyright has been infringed are concerned, the Court notes that there is clear inconsistency between the stand of Telegram at different instances. While it states that proof of infringement is required, it has already blocked various infringing channels and abided by the order dated 28th July, 2020, without demanding further proof, including private channels. In any event, this Court has found a prima facie case of infringement, which is sufficient to direct Telegram to enable the Plaintiffs to obtain their remedies under the Copyright Act.

Accordingly, the Application of the Plaintiffs was allowed.

Authored by: Arjun Nair, 4^th Year, Navalmal Firodia Law College