Case BriefsInternational Courts

European Court of Justice (ECJ): In a landmark Copyright case, the Grand Chamber composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.‑C. Bonichot, M. Vilaras, E. Regan and M. Ilešič (Rapporteur), Presidents of Chambers, E. Juhász, M. Safjan, D. Šváby,S. Rodin, F. Biltgen, K. Jürimäe and C. Lycourgos, JJ.,  rules in the favour of renowned media giant YouTube. The Bench held that,

YouTube and other such intermediaries cannot be made liable for copyright infringement unless the intermediary/operator had specific knowledge that protected content is available illegally on its platform and refrains from expeditiously deleting it or blocking access to it.

The issue before the Court was regarding several infringements of the intellectual property rights held by Mr Peterson and Elsevier committed by users of the video‑sharing platform operated by YouTube and the file-hosting and -sharing platform operated by Cyando, respectively.

Peterson v. Youtube

Mr Peterson, a music producer and owner of the Nemo Studios had entered into a worldwide exclusive artist contract with the performer Sarah Brightman covering the use of audio and video recordings of her performances; including a licence agreement, covering the exclusive distribution of the recordings and performances.

On 4 November 2008, Sarah Brightman began a tour called the ‘Symphony Tour’ in which she performed the works she had recorded for the album Winter Symphony. Noticing that some private recordings from those concerts could be accessed on the YouTube online platform, Mr Paterson issued cease-and-desist declarations under threat of penalties to the owner of Youtube, Google Germany. Though the access to those videos was blocked initially, some audio recordings from Sarah Brightman’s performances, accompanied by still and moving images once again reappeared on YouTube’s online platform. Consequently, Mr Peterson brought an action against Google and YouTube seeking an injunction, disclosure of information and a declaration that they were liable to pay damages.

Elsevier v. Cyando

Elsevier, an international specialist publisher, held the exclusive rights to use the works at issue namely Gray’s Anatomy for Students, Atlas of Human Anatomy and Campbell-Walsh Urology. On being aware that Cyando, an operator of ‘Uploaded’ file-hosting and -sharing platform, had uploaded three works in respect of which it (Elsevier) held exclusive rights, Elsevier had send a notice to Cyando. Later on, Elsevier brought an action against Cyando for prohibitory injunction, as the party responsible for the copyright infringements in the alternative, as a participant in those infringements and, in the further as an interferer.

Questions Referred

  1. Whether Article 3(1) of the Copyright Directive must be interpreted as meaning that the operator of a video sharing platform or a file-hosting and ‑sharing platform, on which users can illegally make protected content available to the public, itself makes a ‘communication to the public’ of that content, within the meaning of that provision, in conditions such as those at issue in the main proceedings.
  2. Whether Article 14(1)(a) of that directive must be interpreted as meaning that, for that operator to be excluded, under that provision, from the exemption from liability provided for in Article 14(1), it must have knowledge of specific illegal acts committed by its users relating to protected content that was uploaded to its platform.
  3. Whether Article 8(3)of the Copyright Directive must be interpreted as precluding a situation where the right holder is notable to obtain an injunction against an intermediary whose services are used by a third party to infringe the rights of that right holder unless that infringement has previously been notified to that intermediary and that infringement is repeated.

Findings of the Court

‘Communication to the Public’ whether by the operator/intermediary or by users?

Under Article 3(1) of the Copyright Directive, Member States are to provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, the authors thus have a right which is preventive in nature and which enables them to intervene between possible users of their work and the communication to the public which such users might contemplate making, in order to prohibit such communication.

Communication to the Public

The Bench observed that potentially illegal content was uploaded to the platform concerned not by the operator, but by users, who acted autonomously and who were responsible for their own actions. In addition, it was the users of the platform who determine whether the content they had uploaded was made available to other internet users via that platform so that those other internet users could obtain access to it.

Further, YouTube does not intervene in the creation or selection of content uploaded to its platform by platform users, and that it does not view or monitor that content before it is uploaded; that content is uploaded to that platform automatically. It was also apparent that YouTube clearly informs its users, in its terms of service and every time a file is uploaded, that it is forbidden to post protected content on that platform in breach of copyright. Furthermore, where a video is blocked due to a report by the right holder, the user who has uploaded it is warned that his or her account will be blocked in the event of repeated infringements. In addition, YouTube has put in place various technological measures in order to prevent and put an end to copyright infringements on its platform, such as, inter alia, a notification button and a special alert procedure for reporting and arranging for illegal content to be removed, as well as a content verification program for checking content and content recognition software for facilitating the identification and designation of such content. Thus, it is apparent that that operator has adopted technological measures to counter credibly and effectively copyright infringements on its platform.

Regarding the Uploaded file-hosting and -sharing platform, it was common ground that a download link allowing access to uploaded content was communicated only to the user who uploaded the file and that the platform did not make it possible to share that link. Thus, in order to share that content, the user must either send the download link directly to the persons to whom he or she wishes to give access to that content or must publish that link on the internet, for example in blogs, forums or ‘link collections’. Moreover, the operator does not create, select, view or check content uploaded to its platform either. Furthermore, it informs its users, in the conditions of use of its platform, that they are prohibited from infringing copyright via that platform.

Consequently, the Bench held that

Article 3(1) of the Copyright Directive must be interpreted as meaning that the operator of a video-sharing platform or a file-hosting and ‑sharing platform, on which users can illegally make protected content available to the public, does not make a ‘communication to the public’ of that content, within the meaning of that provision, unless it contributes, beyond merely making that platform available, to giving access to such content to the public in breach of copyright.

The Bench clarified, an operator could only be held liable for the infringement made via its platform where it has specific knowledge that protected content is available illegally on its platform and refrains from expeditiously deleting it or blocking access to it, or where that operator, despite the fact that it knows or ought to know, in a general sense, that users of its platform are making protected content available to the public illegally via its platform, refrains from putting in place the appropriate technological measures that can be expected from a reasonably diligent operator.

Whether Operators can claim exemption from liability?

In order to ascertain whether the operator of a video-sharing platform or a file-hosting and -sharing platform may be exempted under Article 14(1) of the Directive on Electronic Commerce from liability for the protected content which users illegally communicate to the public via its platform, it was necessary to examine whether the role played by that operator was neutral, i.e., whether its conduct was merely technical, automatic and passive, which mean that it had no knowledge of or control over the content it stores, or whether, on the contrary, that operator played an active role that gave it knowledge of or control over that content.

Noticing that the service providers concerned could not, in accordance with Article 15(1) of that directive, be subject to a general obligation to monitor the information which they transmit or store or to a general obligation actively to look for facts or circumstances indicating illegal activity; and that the Bench held that the platform operators at issue did not create, select, view or monitor content uploaded to their platforms, and the fact that the operator of a video-sharing platform, the Bench held that,

For such an operator to be excluded from the exemption from liability provided for in Article 14(1), it must have knowledge of or awareness of specific illegal acts committed by its users relating to protected content that was uploaded to its platform and that as soon as the service providers actually obtained knowledge or awareness of illegal information, it acted expeditiously to remove or to disable access to that information/content.

Whether actions can be brought against the intermediary without previously notifying it of infringement?

 Article 8(3) of the Copyright Directive provides that ‘Member States shall ensure that right holder are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe copyright or a related right’. Is that Article 8(3) of the Copyright Directive must be interpreted as not precluding a situation under national law whereby a copyright holder or holder of a related right may not obtain an injunction against an intermediary whose service has been used by a third party to infringe his or her right, that intermediary having had no knowledge or awareness of that infringement, within the meaning of Article 14(1)(a) of the Directive on Electronic Commerce, unless, before court proceedings are commenced, that infringement had first been notified to that intermediary and the latter had failed to intervene expeditiously in order to remove the content in question or to block access to it and to ensure that such infringements do not recur. The Bench opined,

Where the ‘interferer’ is a service provider whose service consists in storing information provided by a user, in principle that service provider can be the subject of a prohibitory injunction only if, after notification of a clear infringement of an intellectual property right had been provided, that right is infringed again or continued to be infringed because that service provider had not intervened expeditiously after that notification to remove the content in question or to block access to it and to ensure that such infringements do not recur.

[Frank Peterson v Google LLC & YouTube Inc., C‑682/18, decided on 22-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ and Madhav J. Jamdar, J., while addressing the instant Public Interest Litigation made an observation that,

Right to freedom of speech and expression cannot be exercised to sow seeds of hatred and to create disharmony among religious communities.

Since infammatory posts/messages have the potential of disturbing public peace and tranquility, strong action ought to be taken against those responsible to uphold the high values aimed at by the Constitution.

Communal Disharmony

It has been alleged that Abu Faizal has been posting objectionable video clips as well as offensive messages on YouTube, Facebook and other social media sites which have the potential of creating communal disharmony, a sense of enmity between Hindus and Muslims.

Police has been inactive in getting such posts removed after urging them to do so through the complaint.

In May, this Court had passed an order asking respondents to file an affidavit-in-reply.

Such order further directed investigation against the said Abu Faisal if the substance were found in the allegations made by the petitioner against him. Also, the respondents were directed to block the video uploaded on social media.

Since no step was taken by police, the said Abu Faisal has felt encouraged to post objectionable video clips/offensive messages one after the other with an intention to create unrest.

An FIR was registered by Hyderabad city Cyber Crime Cell against the said Abu Faisal under Section 153-A/269/188/505(1)(b)/505(2) of the Penal Code, 1860 read with Section 67 of Information technology Act, 2000 and during the investigation, it was found that the accused is presently in Dubai.

What did the petitioner seek in view of the above-stated facts?

Petitioner seeks orders on the State and its police force to prevent the commission of cognizable offence by the said Abu Faisal and to take steps for deletion of the offensive video clips/messages, as well as for direction on the respondents 4 to 6 to permanently block the access of the said Abu Faisal to the relevant social media sites.

It is in terms of the power conferred by Section 69A (2) of the I.T. Act that the Rules of 2009 have been framed. Such rules contain a comprehensive procedure for blocking access to information by the public.

Decision in Shreya Singhal v. Union of India, (2015) 5 SCC 1 says that there are only two ways in which a blocking order can be passed – one by the Designated Officer after complying with the 2009 Rules and the other by the Designated Officer when he has to follow an order passed by the competent Court.

In view of the above, Court held that neither the State nor its police force can issue a blocking order; it is left to the discretion of the designated officer under the 2009 Rules.

Further, the Court added that insofar as direction on the private respondents to permanently block the access of the said Abu Faisal to their corresponding social media sites is concerned, bench refrained from making any direction but left it free to the private respondents to regulate their affairs and make such exclusion as would be desirable for strong reasons of public policy of India and the integrity of the State.

The duty entrusted upon the police by Sections 149 and 150 of the CrPC to prevent the commission of cognizable offence has to be preceded with knowledge or information of a design to commit a cognizable offence.

However, in the present matter, without having any prior knowledge or information of any design of the said Abu Faisal and the probable time to commit cognizable offence by posting objectionable video clips/offensive messages and without being empowered to block access of the said Abu Faisal to social media sites, it may not be possible for the police to prevent a cognizable offence being committed by him.

Hence in view of the above, PIL was disposed of with a parting observation that,

“…People may exercise some degree of restraint on their liberty of free speech and expression particularly during these testing times.”

“…it is time that the State introduces a regime of conduct with stricter norms but satisfying the test of reasonableness, in the exercise of the power conferred by Article 19(2) of the Constitution, to deal with the rapid rise of absolutely avoidable, uncalled for and unwarranted inflammatory posts/messages on the social media.”

[Imran Khan v. State of Maharashtra, PIL-CJ-LD-VC-23 of 2020, decided on 21-08-2020]

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., stayed the investigation against the television anchor and journalist Vinod Dua, alleged for spreading rumours and misinformation about the sensitive issue of Delhi Riots and causing hatred and ill-will between the different communities through his web cast on You Tube.

Who filed the present petition?

The petition was filed by Vinod Dua — Journalist and Television Anchor praying for quashing of an FIR registered under Sections 290/505/505(2) of the Penal Code, 1860. Petitioner sought investigation into the said registration of the FIR, as also for violation of his fundamental rights.

Genesis of the matter

Petitioner has a webcast on HW News Network on the YouTube Platform named “The Vinod Dua Show”.

Petitioner’s Stand

Senior Counsel, Vikas Singh submitted that the webcast was made on 11.03.2020 and ran for approximately 12 minutes, comprising two parts, each addressing a different current affairs issue. About 08 minutes of the webcast was in relation to the politics of government formation in the State of Madhya Pradesh in the context of some recent happenings.

As per the allegations contained in FIR, the above mentioned part of the webcast is not subject matter of the FIR.

Second part of about 4 minutes was in relation to the riots that happened in the North-East part of Delhi in February, 2020 and the complainant’s grievance appears to be with what was said in relation to the riots; and that was the subject matter of the complaint made and the FIR registered against the petitioner.

Petitioner’s Counsel relied on the following Supreme Court Judgments:

FIR

FIR records that the petitioner is spreading rumours and misinformation about the sensitive issue of Delhi Riots, which are resulting into causing hatred and ill-will between the different communities.

Respondent’s Stand

Counsel, Piyush Singhal on behalf of respondent 1 submitted that the notice has been issued to YouTube and petitioner has so far not even called for investigation.

Respondent 2’s counsel’s Anil Soni, Ajay Digpaul and Satya Ranjan Swain argued against granting interim relief to the petitioner on the following basis:

  • ingredients of Section 505(2) IPC are made-out on the basis of the allegations in the complaint and in the FIR
  • narration made in the offending webcast to the effect that Delhi Police should issue a fact-sheet indicating as to how many people from the minority community were picked-up and arrested; from where; in what condition and under what threat, amounts to propagating alarming news with intent to create or promote enmity, hatred or ill-will between classes, which is an offence punishable under Section 505(2), and which is both cognizable and non-bailable;
  • What is stated in the offending narration is merely the petitioner’s ‘opinion’ and not based on any ‘fact’, and that only rumour has been fostered to create enmity;
  • there is no legal basis or precedent for staying investigation or proceedings in an FIR

On Prima Facie view, following aspects emerge:

  • Substantial unexplained delay in filing of the complaint and registration of the FIR: Delay of almost 3 months
  • Petitioner learned about the registration of FIR through social media
  • what the complainant alleges was said in the webcast, is not what appears in the transcript of the webcast ; and to that extent no cognizable offence is disclosed on the basis of the material cited by the complainant warranting registration of an FIR
  • there is no allegation that any adverse consequences, in terms of enmity, hatred or ill-will, much less any violence or breach of peace, occurred as a consequence of the webcast
  • ingredients and gravamen of the offence under section 505(2) do not seem to be made-out as required per Manzar Sayeed Khan Judgment.

Thus, it prima facie appears that the registration of the FIR requires to be examined on the touchstone of the law.

Though petitioner has already been granted an interim protection by Additional Sessions Judge, this Court is of the view that further investigation or proceedings pursuant to the FIR would cause unwarranted and unjustified harassment to the petitioner.

Investigation in the matter arising from the subject FIR is stayed, till the next date of hearing.

Matter to be listed on 23-07-2020. [Vinod Dua v. State (Govt. of NCT of Delhi), 2020 SCC OnLine Del 644 , decided on 10-06-2020]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of J.R. Midha, J., in an order directed Facebook Inc., Google LLC, YouTube LLC to remove the content as mentioned by the plaintiffs (Patanjali Ayurved Ltd.) to defame them from their respective portals.

The plaintiffs stated that videos containing slanderous, defamatory and absolutely false statements about the plaintiffs were uploaded and shared on the portals of Defendants 2 to 4 and in order to get rid of that the plaintiffs had sent a notice for the removal of such videos to the Defendants. The Defendants denied doing so as they sought for a Court order from the plaintiffs for the said act.

Further, plaintiffs submitted that the whole mechanism of approaching the Court in itself is an unreasonable and unfair procedure as it puts the citizens to a heavy cost of litigation.

Therefore, on approaching the High Court, the list of URLs published and shared on the portals of the defendants pertaining to the videos which contained slanderous and defamatory content were asked to be removed or blocked/restricted to access. Also, Defendant 1 was restrained from giving any interview in print, electronic, social media till the next date of hearing. Further, the Court asked the defendants to comply with the provisions of Order XXXIX Rule 3 of CPC. [Patanjali Ayurved Ltd. v. Meera Singh,2018 SCC OnLine Del 10543, Order dated 10-08-2018]

 

 

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Nazmi Waziri, J. while dismissing an appeal as withdrawn, directed YouTube LLC to pay Rs 50,000 per hearing.

The present appeal arose due to non-compliance of the injunction order passed by the trial court, directing the appellant to remove the offensive post with the tagline “Indian Money Hungry Dr Geeta Shroff Must Watch”, damaging the fair name of the respondent. It is pertinent to note that the matter was postponed 9 times in 64 days on appellant’s request. The appellant tried to shield behind SPEECH Act (US statute), contending that the post was uploaded from outside India, and the said Act restrains the appellants to disclose the identity of the uploader until directed in terms the Act. Further, the appellant submitted that compliance with the injunction order was not possible due to technological reasons.

The High Court, while considering the submissions, noted that the appellant did not challenge the injunction order and thus it had attained finality. The position that the post was uploaded from outside India was never disputed during the passing of the order. Further, on the contention of ‘technological reasons’ was also rejected and it was noted that “contents can never be master of the vehicle or platform on which they are posted”. The Court held that there was no merit in the appeal and was liable to be dismissed. However, the appellant sought to withdraw the appeal. The Court noted the fact of postponement of the matter 9 times as mentioned above and thought it right that the judicial time consumed should be set at naught. Accordingly, the appellant was directed to pay Rs 50,000 per hearing as costs. The appeal was dismissed as withdrawn. [YouTube LLC v.  Geeta Shroff,2018 SCC OnLine Del 9439, decided on 17-05-2018]