On 29.05.2020, the Delhi High Court passed an ex-parte interim order in a copyright matter. The newspaper company Dainik Jagran filed this suit against the Telegram application.
Facts of the Case
The plaintiff, in this case, is Dainik Jagran. It publishes newspapers in the Hindi language. It stated that it has a wide circulation in both physical as well as digital media throughout the country. The digital e-paper of the plaintiff is available and published on www.jagran.com. Thus, the readers have the option to either subscribe to the newspaper or logging on to the plaintiff’s website to read the daily newspaper in the digital format. The defendant no. 1, Telegram is a cloud-based instant messaging and voice over IP service. These users of Telegram can send messages and exchange photos, videos, stickers, audio and files of any type. The plaintiff has contended that the defendant no. 1 has shared their content through it. Hence, they have filed the present suit.
Contentions of the Plaintiff
The plaintiff has impleaded John Doe/Ashok Kumar, an unidentified administrator of the Telegram Channel as the defendant no.2. They have contested that the plaintiff’s website has a security feature. This feature prevents readers from downloading the same. Plaintiff also claimed to be the exclusive owner of the trademark Dainik Jagran. The trademark with its variations is also registered in many classes. The Grievance of the plaintiff is that defendant no.1 is granting access and to its users without disclosing the identity of such users. The said users of defendant no.1 have created various channels where the newspaper of the plaintiff is being shared and circulated. The e-papers of the plaintiff is being uploaded in PDF format on a daily basis. Thus, defendant no.1 is not only permitting availability of current editions of the e-paper but also all the previous editions of the e-paper.
Evidence Provided by the Plaintiff
The plaintiff submitted that defendant no.1 through defendant no.2 has indulged into reproducing, adopting, distributing, transmitting and disseminating the e-newspapers of the plaintiff. This did not only cause the plaintiff serious financial loss but also violated plaintiff’s trademark rights as well as copyrights in the e-newspaper. Moreover, the plaintiff issued a notice to the defendant no.1 on 09.04.2020, by way of an email. The defendant did not reply to the plaintiff. Thereafter, the plaintiff issued three reminders. Yet, defendant no. 1 did not respond even after several reminders. After filing of this plaint, the plaintiff received a reply on 25.05.2020 from defendant no. 1. The reply claimed that the channels were blocked.
The plaintiff has also placed on record a screenshot dated 28.05.2020, which shows that the channels of defendant no. 2 were still functioning. Additionally, the plaintiff showed that the daily viewership of the defendant No. 2’s channels for which defendant no.1 claims to be intermediary is growing day-by-day. The subscribers for his channel was 18989 on May 16 whereas as it rose to 19239 by 18.05.2020.
Legal Provisions
The counsel referred to the provisions of Section 79 of the Information Technology Act. He submitted that defendant no. 1 cannot escape from its liability on the ground that it is an intermediary. Further, the defendant no. 1 has to conduct due diligence. According to Rule 3(4) of the Information Technology (Intermediaries Guidelines) Rules, 2011, on being informed about the misuse, defendant no. 1 should pull down the said channels within 36 hours.
The counsel pleaded that repeated reminders were given. Still, the channels have not been pulled down. He stated that the reply of defendant no. 1 was that the channels have been blocked which later was also proved to be false.
Court’s Decision
The bench comprising of Justice Mukta Gupta observed that the plaintiff has made out a prima facie case in its favour. The Court stated that if the ad-interim injunction is not granted, then the plaintiff would suffer irreparable loss. In addition to the above observations, the Court opined that the balance of convenience also lies in favour of the plaintiff.
As a result, the Court granted an ad-interim injunction in favour of the plaintiff. Further, the Court directed the defendant no. 1 to disclose the subscriber identity of its users. The Court ordered the defendant no. 1 to take block the telegram channels with such circulations or any other similar channels infringing the rights of the plaintiff within 48 hours.
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