Wednesday, 31 August 2016

India: Delhi High Court restrains YouTube from displaying Offending Videos against Tata Sky

The cause of action in the instant case pertains to the interim injunction granted by the Delhi High Court on August 27, 2015, wherein the Honerable Court restrained the Respondents (YouTube, LLC) from using the Petitioners' (Tata Sky Ltd.) trade mark TATA SKY in any manner on their websites and also to remove any material which may be any trick or process to hack into the system of the Petitioner. By the impugned order, the Respondents were directed to remove the video clips "how to watch HD channels free in TATA SKY Trick" or "Hack tata sky for free exclusive" from the Respondent’s websites.

Apparently, pursuant to the aforesaid order, the Respondents have taken down from its website, the URLs of the aforesaid videos.

YouTube’s Prayer in the case

In the instant case, the Respondent was aggrieved and contended that YouTube LLC itself did not violate the trademark TATA SKY as it was not the publisher of any of the complained videos. In view of the said circumstances, the Respondent pleaded to the Court to vacate the injunction as far as YouTube LLC is concerned, however to continue 'John Doe' order issued by it against unknown offenders.

That the Petitioner erred in alleging trademark violation by the Respondent and was unclear about the kind of violation that had taken place.

YouTube’s defence
  1. That being an intermediary under the Information Technology Act (IT Act) it is statutorily exempt under Section 79 from liability in respect of any third party video uploaded on the YouTube platform.
  2. That impugned videos were created, uploaded and made available by third party users on YouTube and not by YouTube itself.
  3. That under the provisions of the IT Act, an electronic record sent by an originator or even a person acting on his behalf, is attributed to the originator alone and not the platform provider.
  4. The relief as prayed for, if allowed, would impose an unfair burden on YouTube to shift through and filter millions of videos available on YouTube belonging to third parties and decide whether such videos are infringing the trademark, copyright or other proprietary rights of the Petitioner. This would be contrary to the letter and spirit of Section 79 of the IT Act which requires an intermediary to be "content neutral" to any video/content uploaded on its website and simply follow a "notice and takedown" or a "receive and react" mechanism in relation to any complaint.
Contentions forwarded by Tata Sky
  1. That YouTube LLC was obliged to act with promptitude once it was clear that the offending videos were illegal, inasmuch as that Tata Sky's STBs could be hacked into through simple steps.
  2. The Petitioner made reference to the order of Supreme Court in the case of Sabu Mathew George v. Union of India2016 SC 681 in which it was observed that the intermediaries "cannot put anything that violates the laws of this country."
  3. That the policy developed by the Respondent was inadequate to deal with the type of difficulty faced by Tata Sky.
  4. That the Respondent, in spite of being aware of the illegal act as copyright violation failed to act promptly, thereby forcing the Petitioner to take a legal recourse.
Court’s Observations in the Case
  1. That there could be complaints regarding some material on the website of YouTube which by their very nature require it to act immediately without insisting on the Complainant having to clearly demonstrate that the complaint falls within one or the other category that YouTube has identified for the purposes of acting on such complaints.
  2. That when a specific instance of possible violation is drawn to its attention, its review team should view the content and take a call on whether it requires to be taken down.
  3. That in the case, the Petitioner had specifically pointed out that the impugned act was violative of its rights and of broadcasters and was an offence under the IT Act. Thus, YouTube was obliged not to host content that violates any law for the time being in force.
  4. To be fair to Mr Nigam, he did say that there are certain types of content, and he flagged child pornography as an instance, where YouTube would not get into the exercise of first 'categorising' the complaint before proceeding to take down the content. In other words, the very nature of the content would warrant immediate action even though the Complainant may not have correctly categorised the complaint. He further stated that every Court order is an occasion for YouTube to review its policy and strengthen it further.
That the injunction order was directed at it not because YouTube had violated any trademark of Tata Sky but because its website hosted the offending URLs which required to be taken down and it was for that purpose alone that YouTube was a necessary and proper party without whose compliance the injunction order would have not been able to be implemented.

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