The recent interim order dated March 1, 2023, issued by the Delhi High Court in Samridhi Enterprises vs. Flipkart Internet Private Ltd. had sparked a lot of debate and confusion among the public concerning the liability of an intermediary. As per the order of the High Court, an intermediary is not obligated to take action in cases of infringement reported by their users. The Hon’ble Court delved deeply into the interpretation of Rule 3 of the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, on the question of whether there exists an obligation on the part of intermediaries to act on complaints against infringers.
The plaintiff was in the business of manufacturing and selling car covers under the marks “UK Blue” and “Autofact” and had been selling them on Flipkart since 2018. The plaintiff happened to notice that some other entities started to copy their designs, looks and marketing strategies on the Flipkart platform itself. Apart from the fact that the covers were identical, the infringers also sold these covers in a fashion similar to that of the plaintiff’s company to create confusion and boost their sales.
The plaintiff had informed and reported to Flipkart about the infringement of their products by placing screenshots and other similar evidences of infringement committed by the infringer on record. The platform refused to take any action against the infringers and advised the plaintiff to approach a court of law for redressal of IPR disputes.
The plaintiff approached the Delhi High Court, citing that Flipkart cannot act as an intermediary if it fails to adhere to its obligations as an intermediary and to observe important due diligence mandated by Rule 3(2) of the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
Rule 3(2)(a) of the IT rules requires the intermediary to publish on its website the details of the grievance officer and the mechanism by which a user could complain about any possible violations. Further, it requires the officer to acknowledge the complaint within 24 hours and resolve the issue within a period of 15 days.
The plaintiff relied on these two sections to further their claim of infringement against Flipkart.
Rule 3 (2)(1) (proviso) provides for intermediaries to acknowledge any complaint within 24 hours and resolve all such complaints within 15 days from their receipt. Moreover, the proviso also calls upon the intermediary to develop appropriate safeguards to avoid any misuse by users.
The Hon’ble Court was of the opinion that Rule 3(2)(a) only envisages complaints regarding violations of the obligation imposed on the intermediary under the rules. There is no scope for the intermediary to take any kind of action against the infringer upon receipt of the complaint. The same argument was also put forth by the court when the question surrounding Rule 3(1)(b)(iv) was raised, and the court clarified that the rule merely provides for intermediaries to inform users not to display or host infringing content. The rule does not mandate or require the intermediary to take any action upon receipt of the complaint of infringement.
The Hon’ble Court stated that it cannot read into IT rules something that the rules do not contain expressly or by necessary implication. It further said that, “where the applicable statutory rules do not envisage action being taken by an intermediary merely on the complaint being made by an aggrieved victim or user regarding infringement of intellectual property rights, by content posted on the platform of the intermediary, the court cannot, by placing reliance on an internal policy of a particular intermediary, read into Clause 3 any such requirement, especially where such a provision existed in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and has consciously been omitted in the 2021 Rules”.
The Hon’ble Court was of the opinion that the complaint against Flipkart that it is not taking action does not appear to be sustainable due to the above-mentioned reasons. However, a prima facie case of copyright violation was made out by the court and in order to protect the plaintiff from any further damages, an interlocutory injunction was granted against listing the alleged infringing content.
Though the Hon’ble Court did grant the injunction to protect the plaintiff from the ongoing infringement occurring on the platform, the main essence of the IT Act and rules was not taken into consideration while discharging Flipkart of any liability.
The plaintiff erred in not considering the many precedents laid by this very same court. For instance, in Super Cassettes Industries Ltd. vs. Myspace Inc. & Anr1, the court said that “I find that there is no impact of the provisions of Section 79 of the IT Act (as amended in 2009) on copyright infringements relating to internet wrongs where intermediaries are involved and the said provision cannot curtail the rights of the copyright owner by operation of the proviso of Section 81 which carves out an exception for cases relating to copyright or patent infringement”.
The case witnessed that the Indian Copyright Act, 1957, overrode the provision of the safe harbour granted by the IT Act under Section 79. The Hon’ble Court relied on Section 81 of the IT Act, which provides for an exemption for people exercising their rights under the Copyright Act and the Patent Act. The Hon’ble Court should have recognised this precedent and acknowledged the obligation it posed to the intermediary to remove such infringing products from its platform.
It doesn’t end here. The court should have considered in what instance the immunity available for intermediaries will be impacted under Section 79 of the IT Act. Section 79(3)(b) of the IT Act states that upon receiving actual knowledge of an unlawful act connected to the computer resource controlled by the intermediary, the intermediary shall expeditiously remove or disable access to such infringing material. If such action is not undertaken by the intermediary, it shall lose the safe harbour guaranteed by Section 79. If safe harbour protection is not available, then allowing an infringement to take place on their platform may constitute abetment and unlawful activity which in turn would make them liable under the law of the land.
Another striking part of the order is that, even though the Hon’ble Court completely relied on the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, the court failed to read into Rule 3 (2) (1) of the IT Rules 2021. The proviso of the rule clearly stipulates that any complaint received from the user other than under Subclauses (i), (iv), and (ix) needs to be expeditiously resolved within 72 hours by the grievance officer. That does not take away the primary obligation of the intermediary to act within the 15 days mandated in the main provision in relation to such excluded matters, including cases of IP infringement. It is astonishing that the court or the parties gave more emphasis to the proviso than the main clause under Rule 3(2)(a)(i).
Initially, Rule 3(2)(b) was worded as follows: “(i) acknowledge the complaint within twenty-four hours and dispose off such complaint within a period of fifteen days from the date of its receipt;
(ii) receive and acknowledge any order, notice or direction issued by the Appropriate Government, any competent authority or a court of competent jurisdiction.”.
On October 28, 2022, the government amended the above rule to read as follows: “acknowledge the complaint within twenty-four hours and resolve such complaint within a period of fifteen days from the date of its receipt:
Provided that the complaint in the nature of request for removal of information or communication link relating to clause (b) of sub-rule (1) of rule 3, except sub-clauses (i), (iv) and (ix), shall be acted upon as expeditiously as possible and shall be resolved within seventy-two hours of such reporting;
Provided further that appropriate safeguards may be developed by the intermediary to avoid any misuse by users;”
The intention of this amendment is to prescribe faster action for certain kinds of wrongdoings and expect them to act within 72 hours. At the same time, for those others (sub-clauses (i), (iv) and (ix)) the original time frame of 15 days for taking action remains. Without a doubt, the goal of this amendment is not to encourage platform users to behave irresponsibly or complacently despite being aware that the platform is frequently used to violate intellectual property rights. It merely provides them with sufficient time and excludes the requirement of compliance within 72 hours.
The intermediary is still obligated to undertake the due diligence described in Rule 3(1)(b)(iv), and if they do not do so and do not take action within fifteen days even after becoming aware of the infringement, the immunity from liability specified in Section 79 will end. The safe harbour will be eliminated because the proviso to Section 81 of the IT Act clearly indicates that IP rights are to be expected to be protected by the intermediary.
The Hon’ble Court was right in granting the injunction in favour of the plaintiff to restrain Flipkart from allowing such infringing products on their platforms.
However, the Hon’ble Court erred by not making a harmonious reading of Rule 3 (2) (a) of the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, with Section 79 (3) (b) and the proviso to Section 81 of the IT Act. An isolated reading of the provision and discharging Flipkart of their liability under the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 seems to be an oversight.
The proviso appended to the said section provides that nothing contained in this act shall restrict the exercising of any right by any person under the Copyright Act. This, along with Section 79 (3) of the IT Act, mandates the intermediary not to conspire, abet or aid any infringement and to remove the infringing material on receiving actual knowledge of it.
The above-referred order will only help the intermediaries and platforms to behave irresponsibly and indifferently even when an intellectual property owner notifies them of infringement on their platforms. It compels aggrieved intellectual property owners to initiate legal action for every infringement, which is expensive to carry out. IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, was primarily made to make the platforms more responsible and ethical. Allowing them to act irresponsibly through a limited interpretation of law is unconscionable.
1. CS (COMM) 63/2023
The recent interim order dated March 1, 2023, issued by the Delhi High Court in Samridhi Enterprises vs. Flipkart Internet Private Ltd. (CS (COMM) 63/2023) had sparked a lot of debate and confusion among the public concerning the liability of an intermediary. Though the Hon’ble Court did grant the injunction to protect the plaintiff from the on-going infringement occurring on the platform, the main essence of the IT Act and rules was not taken into consideration while discharging Flipkart of any liability.