Who Is The Infringer? User Or The Medium?
We live in a digital world where everything is available to us at our finger tips, a feat which was unimaginable 12-15 years ago. Devices like modern smartphones literally grants one access to all the knowledge and information available in the world, in a small device which can be stored in pockets! With the onslaught of Covid-19 in 2020, several businesses had to change their traditional way of doing business and embrace digital methods. Newspaper houses were one such business, wherein the business was drastically affected  the old tradition of selling hardcopies of newspapers was put on hold due to COVID-19 and many households had even ceased subscribing to physical newspapers, thus the industry had to strive hard to make the same content available to readers in user friendly e-format. However, in view of technological enhancements and availability of sharing and streaming options, the contents of these e-newspapers is often not limited for exclusive use of paid subscribers only. Thus, once shared on the internet, the so called paid news becomes available for anyone to access, with very little control over the dissemination. Thus, it is inevitable that a legal issue regarding this would crop up, especially during this time of pandemic wherein the focus on e-media and e-newspapers are higher than ever before. The publishers of the leading English daily newspapers, the Times of India and Navbharat Times, recently approached the Hon'ble Delhi High Court to restrain instant messaging applications WhatsApp, Telegram, and several administrators of group chats that are run on these apps, from sharing the e-newspapers of Times of India and Navbharat Times, without their (Plaintiff's) permission, as the same amounted to infringement of the Plaintiffs' copyright vested in these newspapers. BRIEF FACTS OF THE CASE  In the case titled Bennett Coleman Co. Ltd. vs. WhatsApp Inc. & Ors. 1, the Plaintiff is the publisher of several newspapers of various languages in India, namely The Economic Times, Navbharat Times, Maharastra Times, Sandhya Times etc. Out of all these publications, one newspaper 'Times of India' is claimed by the Plaintiff to be India's most widely circulated English daily which attracts a daily circulation of more than a million copies. It is the case of the Plaintiff that the news articles in its newspapers are published with indication/credit to the specific named source for instance PTI, Reuters etc. Such news articles / contents published on Plaintiff's website as well as in its newspapers constitute "the original literary work" within the meaning of "copyright", thereby being entitled to copyright protection under Section 14 of the Copyright Act, 1957. The Plaintiff is the exclusive owner of the copyright in its literary work published in its newspaper. Furthermore, the Plaintiff has also started offering its print publication in a digitised format i.e. E-papers, on its website to its paid subscribers i.e. a consumer can subscribe to the E-newspaper on payment of prescribed subscription fee and thereafter the user can readily access any Times Group newspapers. ALLEGATIONS OF THE PLAINTIFF  The Plaintiff is aggrieved by the unauthorized and illegal circulation/distribution of its e-newspapers by certain users of WhatsApp as well as several other websites that are offering these e-papers for free download, thereby circumventing the subscription model of newspapers in entirety. The Defendant No. 1, i.e. WhatsApp and Defendant No. 3 i.e. Telegram, are mobile apps which provides its users the ability to form groups for broadcasting messages to a large number of persons at one go. It has been alleged by the Plaintiff that due to access and permissions granted by Defendant Nos.1 and 3 to various users, numerous channels and groups are created by known and unknown administrators / users, wherein various e-papers of the Plaintiff have been illegally uploaded in PDF format on a daily basis without the authorization of the Plaintiff. In view of the aforesaid, the Plaintiff contended that it being the exclusive owner of the copyright vested in the said literary work, possesses all rights to it in any material form. Hence, the Defendants' actions of circulating copies of e-newspapers owned by the Plaintiff violated the rights of the Plaintiff. The Single Bench comprising of Hon'ble Justice Jayant Nath agreed with the contentions of the Plaintiff, and was satisfied that a prima facie case of infringement was made out against the Defendants. Therefore, an interim injunction was granted, inter alia restraining WhatsApp, Telegram, and certain other individuals from circulating e-newspapers on their respective platforms. This is a question that has the potential to shape the law regarding such a popular and prevalent issue in the long run. Messaging applications like WhatsApp 2 and Telegram have their own internal policies for handling complaints pertaining to infringement of someone's IP rights, and as a first course of action it is advisable that the party whose IP is being infringed, primarily pursues these channels first and only if they fail to resolve the issue, then a suit for infringement is lodged with the appropriate adjudicatory body. WhatsApp's Intellectual Property Policy allows the complainant to request WhatsApp to removes any infringing content it is hosting. However, as per the said policy, the only information WhatsApp is hosting are its users' account information, including the users' profile picture, profile name, or status message, if they decide to include them as part of their account information. The policy also states that before submitting an infringement complaint, you may send a message to the user who is suspected of infringing the IP 3. Thus, it is evident that WhatsApp's current policy does not cover information/data/files that are disseminated via messages. Telegram on the other hand has a list of FAQs on its website wherein it states that all Telegram chats and group chats are private amongst their participants, and Telegram does not process any takedown requests related to them. However, if a user is of the view that any sticker, channel or bot on Telegram is infringing the user's copyright, a complaint may be submitted for the same. These complaints should only be raised either by the owner of the copyright or an authorized agent of the owner. 4  Furthermore, both of these messaging apps state that information shared by their users through these apps are end-to-end encrypted. Therefore, it may be argued that they are simply an 'intermediary' as per Section 2(w) of the Information Technology Act, 2002. According to the Hon'ble Delhi High Court's decision in Myspace v. Super Cassettes, FAO(OS) 540/2011 intermediaries (which include online messaging platforms like Telegram/WhatsApp) can claim the 'safe harbour' provision available under Section 79 of the Information Technology Act (IT Act) and protect themselves from copyright infringement liability. According to Section 79 and the Rules made thereunder, the intermediary can claim such safe harbour protection from liability, provided it does not have 'actual knowledge' of the illegal (here, infringing) content, and does not fail to expeditiously take down such content upon receiving such knowledge. As per the Myspace case, the condition of actual knowledge is satisfied when the specific location where the infringement has occurred is communicated to the intermediary. Section 79(2) of the IT Act provides that the safe harbour protection shall apply if-  the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or the intermediary does not- initiate the transmission; select the receiver of the transmission; and  iii. select or modify the information contained in the transmission;  the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf  Furthermore, as per Section 79(3) of the IT Act, the safe harbour protection shall not apply if-  the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act; upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner  Also, non-compliance of any of the mandatory due-diligence requirements by an intermediary, as given in the Intermediary Rule, 2021, shall also lead to an intermediary losing its safe harbour protection. 5  On February 25, 2021, the Government of India had notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. 6 The primary objectives of notifying these new rules is to expand the scope of due diligence responsibility and accountability of an intermediary operating or looking to operate in India, as well as to make the establishment and maintenance of Grievance Redressal Mechanisms by an intermediary operating (or looking to operate in India) mandatory. Rule 3 of the said Rules, inter alia provides that an intermediary, including a social media and significant social media intermediary, shall observe various due diligences while discharging its duties. One of these due diligences that will be relevant for the purpose of the present case is Rule 3(1)(b)(iv), which provides that "the rules and regulations, privacy policy or user agreement of the intermediary shall inform the user of its computer resource not to host, display, upload, modify, publish, transmit store, update or share any information that infringes any patent, trademark, copyright, or other proprietor rights." Since the said Rules were notified, intermediaries such as WhatsApp and Telegram, amongst others, have amended their Privacy Policy and Terms of Use, to be in line with the changes. 7  It is also noteworthy to mention that these new Rules also provides in Rule 4(2) that a significant social media intermediary providing services primarily in the nature of messaging shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial order passed by a court of competent jurisdiction or an order passed under section 69 by the Competent Authority as per the Information Technology (Procedure and Safeguards for interception, monitoring and decryption of information) Rules, 2009. However, an order of this kind shall only be passed for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material, punishable with imprisonment for a term of not less than five years. Since the present case does not fall under any of the above stated categories, the Plaintiff may not be able to take recourse of this Rule. CONCLUSION  In the Bennett Coleman case, the interim injunction order does not mention whether the Plaintiff had sent notices to WhatsApp and Telegram, requesting that the infringing material be taken down, before filing the suit. Be that as it may, in order to prove copyright infringement by both the intermediaries and the admins of the WhatsApp groups and Telegram Channels, the Plaintiff will have to show that:  The intermediary had knowledge or means of examining the content in question; The group/channel admins have control over the infringing content shared on the channels or groups, to see if they generally exercise editorial control (such as removing posts or filtering messaged), or if they permit unlawful activity despite knowledge of the same; Non-compliance by the intermediary of the latest Intermediary Rules, thereby stripping it of its 'safe harbour' protection. The issue pertaining to liability of an intermediary is quite young in India. Perhaps this is why the Hon'ble Delhi High Court in the Myspace case, referred to several judgments of foreign courts, to come to the decisions about the liability of an intermediary for copyright infringement. It is noteworthy to refer to the case of Religious Technology Center Vs. Netcom Online Communication Services Inc. 907 F. Supp. 1361 (1995), which was decided before the DMCA came into effect. In the said case, the United States District Court for the Northern District of California held that "where the infringing subscriber is clearly directly liable for infringement, imputation of liability on countless service providers whose role is nothing more than setting up and operating systems which necessary for the functioning of the Internet is illogical. It was further held that finding intermediaries responsible for the act of others, which cannot be deterred would be impractical and theoretically impossible especially given that "Billions of bits of data flow through the Internet and are necessarily stored on servers throughout the network and it is thus practically impossible to screen out infringing bits from non- infringing bits." A similar case of this kind concerning copyright infringement was filed by Dainik Jagaran last year in 2020, against Telegram and unnamed Defendants operating certain Telegram channels, which allegedly circulate versions of the Plaintiff's newspaper through PDF. You can read our analysis of the said case here. The Bennett Coleman case is now listed for further proceedings on August 18, 2021. It should be interesting to see what defence the Defendants claim in this suit then. Footnotes  1. CS (COMM) 232/2021  2. https://www.whatsapp.com/legal/ip-policy/?lang=en#:~:text=To%20report%20trademark%20infringement%20and,of%20the%20information%20listed%20below). 3. ibid  4. https://telegram.org/faq  5. Rule 7 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021  6. https://www.meity.gov.in/content/notification-dated-25th-february-2021-gsr-139e-information-technology-intermediary  7. https://www.tribuneindia.com/news/nation/7-social-media-giants-comply-with-new-it-rules-twitter-dithers-259910  For further information please contact at S.S Rana & Co. email: info@ssrana.in or call at (+91- 11 4012 3000). Our website can be accessed at www.ssrana.in  The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.