Significant Litigation

 

These are some of the significant litigation that we are following.

Shreya Singhal v. Union of India, AIR 2015 SC 1523

Judgement Link

In this case, the Supreme Court of India has invalidated Section 66A of the Information Technology Act, 2000. The provision, which penalized the dissemination of information causing annoyance, inconvenience, or insult, was found to be unconstitutionally vague and overly broad. The petitioners contended that Section 66A’s protections exceeded the permissible restrictions on freedom of speech under Article 19(2) of the Indian Constitution. The Court concurred, stating that the provision’s undefined terms could unjustly curtail a significant amount of protected speech.

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Supreme Court on CCTV Footage as the best evidence

This post analyses the Supreme Court’s recent judgement in of Tomaso Bruno & Anr. v. State of U.P. [Criminal Appeal №142/2015] which lead to the acquittal of the appellants on the basis of the prosecution failing to adduce CCTV footage. This follows up on the recent judgement of Anvar P.V vs P.K.Basheer & Ors which has been analysed here.

Facts

The case concerned an appeal by two Italian nationals who were convicted for the murder of another Italian national during their trip to Varanasi. All three, i.e. the two appellants and the deceased were sharing a hotel room at the time of death. The cause of the death was asphyxiation and most of the evidence was circumstantial. The defence of the appellants was that the death occurred during their absence as the deceased was not feeling well and could not join them in an excursion.

The prosecution version it appears is that the appellants did not go for any such trip and hence could not avail the plea of alibi. In counter to this the defence relied on the absence of several pieces of digital evidence such as CCTV footage and SIM card details to argue that the prosecution failed to prove any such case beyond reasonable doubt.

Issue(s)

Will the absence of production of CCTV footage lead to the acquittal of the appellants?

Decision and reasoning

The reasoning of the court commences from Paragraph 21 of the Judgement. The court first notes the nature of the case and the relevance of the CCTV footage. Towards this the court notes that the case of the prosecution is largely circumstantial. There are no eye witnesses and medical evidence is limited to citing the cause of death as asphyxiation.

Further the conviction of the appellants was based on the testimony of the Hotel Manager and the Investigating Officer of the police, who stated that they saw no ingress into the hotel room of the deceased. This was based on viewing the CCTV cameras installed in the common areas of the hotel. However, the CCTV footage by itself was not adduced as evidence by the prosecution. Hence, in any case the court reasons that the CCTV footage constituted the best evidence.

The effect of non-production of not adducing the best evidence, is viewed by the Court as material suppression which leads to an adverse inference under Section 114(g) of the Evidence Act. It is important to note that the reasoning of the Court is not limited to the absence of CCTV footage. It also involves the inconsistences in the testimonies of the prosecution witnesses and the medical examination.

On the basis of the above the Court in Paragraph 42 states that,

“The courts below have ignored the importance of best evidence i.e. CCTV camera in the instant case and also have not noticed the absence of symptoms of strangulation in the medical reports. Upon consideration of the facts and circumstances of the case, we are of the view that the circumstances and the evidence adduced by the prosecution do not form a complete chain pointing to the guilt of the accused and the benefit of doubt is to be given to the accused and the conviction of the appellants is liable to be set aside.”

Analysis

  1. The application of this case appears to be limited and may be only extended to prosecutions in which there are no eye witnesses and the case solely relies on circumstantial evidence. Hence, it may be distinguished on facts if it is sought to be used as a general rule stating that the absence of CCTV footage leads to an acquittal by default. Any such broad and general reading, would be incorrect in my opinion [Read Para 22].
  2. Another factor which may lead to a limited reading of the rule is the location and the number of CCTV’s which are placed. This will vary as per the premises and the number of people having ingress in the area. In a hotel lobby, or in the corridor where the room is located, such CCTV footage may constitute the best evidence given the limited number of people who may go through it, however in a public area such as a bus station, CCTV footage from a distance may not constitute the best evidence [Read Para 22].
  3. The Court incorrectly cites that case of State of NCT Delhi v. Navjot Sandhu (Afzal Guru — parliament attack case), which has been expressly overruled by the Supreme Court itself in its judgement of Anvar P.V vs P.K.Basheer & Ors. It is unfortunate the court cites it as an illustration for, “production of scientific and electronic evidence in court as contemplated under Section 65B of the Evidence Act is of great help to the investigating agency” [Read para 26].
  4. The Court also correctly notes the position in law that the burden of claiming the plea of alibi is on the accused. Here, it disregards the concern of the High Court which upheld the conviction of the appellants by stating that they failed to by themselves make an application under Section 233 of the CrPC to produce the CCTV footage. This provision is similar to a provision on discovery, where an accused is permitted to make an application to a court, which directs the prosecution to produce certain evidence in its possession. The Supreme Court though notes this, disregards it without providing any reasoning [Read para 29].
  5. Again, the Court’s determination is not limited to the CCTV footage but extends to the inconsistencies in the witness statements as well as medical examination. CCTV footage thought termed as the, best evidence is not the sole determination in the case, leading to the acquittal of the accused.
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Delhi HC defines jurisdictional rules for Ecommerce

A Division Bench of the High Court of Delhi in appeal has by its judgement in World Wrestling Entertainment v. Reshma Collection (FAO (OS) 506/2013 dated 15.10.2014) defined the jurisdictional rules which apply to eCommerce and online retailers. These rules are limited to suits for trademark and copyright infringement. This post first sets out the facts and the reasoning of the Single Judge who rejected the Suit on grounds of territorial jurisdiction. It then examines the appeal and the grounds approved by the Division Bench to reverse the decision. Finally it examines the implication of the Division Bench judgement.

Facts and procedural history

The Plaintiff in this case is World Wrestling Entertainment, which primarily broadcasts wrestling programs in India. These programs feature a standard set of wrestlers, whose merchandise in the nature of action figures, clothing and apparel is sold by the Plaintiff as well. Being aggrieved by the alleged unauthorized sale of alleged counterfeit merchandise it preferred a suit for infringement. The basis of its claim against the defendant was copyright and trademark infringement. It is also relevant to mention that the Defendant is located in Mumbai, Maharashtra outside the local limits of the territorial jurisdiction of the High Court of Delhi.

The case was first heard by the Single Judge who dismissed it for lack of territorial jurisdiction. It is important to first examine the statute which defines this rule. Since, the case concerns substantive claims of copyright and trademark infringement the relevant statutes are the Copyright Act, 1957 and the Trademark Act, 2002. Also, since it is not a passing off action, or a a suit alleging a claim under common law, the general jurisdictional rules under sections 16–20 of the Code of Civil Procedure, 1908 are inapplicable (so is the holding in Banyan Tree).

The relevant provisions under the Copyright Act, 1957 and the Trademark Act, 2002 are Sections 62(2) and 134(2) respectively. They are analogous and the jurisdictional test with respect to forum prescribed under both is that the Plaintiff should, “carry on business”, where the case is filed. Hence, 1) the physical location of the defendant is immaterial; b) the case should be instituted in the local limits of a Court within which the Plaintiff, “carries on business”.

The Single Judge, by its Judgement dated October 4, 2013 concludes that the Plaintiff does not carry on business within the local limits of Delhi. The reasoning for this is, mere access of the website from which the sale occurs does not create jurisdiction. Moreover, any sale by the Plaintiff in Delhi without an element of control does not create jurisdiction. The Court states in Para 23 that,

“23. If the plaintiff’s submission were to be accepted, it would mean that the plaintiff could file a suit at any place which provides internet access to the plaintiffs website, irrespective of the defendant?s location, only on account of the plaintiff’s website being accessible in that State. The insertion of Section 134(2) was with a view to enable the plaintiff to institute a suit where it has actual and substantial business interest so that an additional forum convenient to the plaintiff is available. If the intent of the legislature had been to vest jurisdiction solely on account of accessibility of plaintiff?s website at the place of suing, then the same would have been expressly provided for, especially keeping in mind plaintiff?s submissions that the legislature has recognized new media on account of various amendments.”

Aggrieved by this the Plaintiff appealed to the Division Bench of the High Court of Delhi.

Reasoning of the Division Bench

In reversing the decision of the Single Judge and holding that the Delhi High Court does have territorial jurisdiction, the Division Bench (“DB”) interprets the term, “carries on business” more purposively.This reasoning is based on a reading of the Supreme Court judgements of Bhagwan Goverdhandas Kedia and Dhodha House.

The reasoning of the DB, commences from Para 17. They first concentrate on the rules of formation of contracts, which have been interpreted by Courts for instantaneous modes of communication. For this, the Court uses the classic example of formation of a contract by telephone. It states that the acceptance of the contract takes at the place where the acceptance of the offer is intimated to the offeror. The Court applies this rule to commercial transactions over the Internet. It states that:

  • A website of the refers to various goods and services. It is not an offer but an invitation to an offer, just as a menu in a restaurant.
  • The invitation, if accepted by a customer in Delhi, becomes an offer made by the customer in Delhi for purchasing the goods.
  • When, through the mode of the software and the browser, the transaction is confirmed and payment is made to the through the website.
  • Since the transaction between the two (customer & vendor) takes place instantaneously, the acceptance by the vendor is instantaneously communicated to its customer through the internet at Delhi. Therefore, in such a case, part of the cause of action would arise in Delhi.

This is not used by the DB to reason jurisdiction by itself as the, “cause of action”. The acceptance at Delhi is only part of one of the requisites of the Plaintiff conducting business in Delhi. Taken with this, the DB reasons, the Plaintiff is virtually carrying on all activities virtually that it would, if it would have a physical shop within the territorial jurisdiction of the Court. On the basis of this the High Court of Delhi has jurisdiction.

Criticisms and prescriptions

The position which emerges from this ruling is as follows:

  1. As per this decision in cases of copyright and trademark infringement the Plaintiff can institute the case where sales are made by it. Hence, the choice of forum is now as per the choosing of the Plaintiff if it makes sales across India. It can in effect institute a suit in a civil court or a high court having original jurisdiction in such matters across India.
  2. This decision is limited to cases of copyright and trademark infringement and does not extent to passing off matters. For passing off matters (in which the trademark is not registered but has acquired secondary meaning), the High Court decision in Banyan Tree still holds the field.
  3. According to the Court at the stage of notice on a suit, a mere demurrer by the Plaintiff as to the territorial jurisdiction should be accepted. In essence at this point of time, the threshold on the Plaintiff is low. Of course this can be challenged by the Defendant by way of an application under Order 7, Rule 11 of the CPC (barred by law) or at the stage of evidence. Hence at the stage of notice if territorial jurisdiction is properly pleaded, notice should be issued. Lawyers should take care by studying the facts of the case and reasoning that such jurisdiction is made out.
  4. As a policy criticism, the number of available forums for the Plaintiff, especially an eCommerce retailer is large. The criticism by the Single Judge of this indicating the possibility of forum shopping by the Plaintiff seems credible.
  5. Many eCommerce and online retailers have forum selection clauses with customers. Usually they will be inapplicable to such cases since an alleged infringer is usually a third party and not a customer bound by the contract and hence the clause. However, if given a peculiar fact situation where this does occur, there is uncertainty how the DB’s decision in WWE v. Reshma Collection will be applicable.
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Delhi High Court orders appointment of grievance officers

Appointment of grievance officers

The Delhi High Court while hearing the case of K.N. Govindacharya v. Union of India [W.P.© 3672/2012] dated 23.08.2013 has directed the appointment of grievance officers under Rule 3(11) of the Intermediaries Rules, 2011.

The Court observed:

“On going through the above, sub rule (11), we feel that it should be directed that intermediaries, including the social networking sites such as Facebook and Orkut, should immediately publish the names of the respective Grievance Officers on their websites alongwith contact numbers as well as the mechanism by which any user or any victim who suffers as a result of access or usage of computer resource by any person in violation of rule 3, can notify their complaints against such access or usage. The same be complied with, if not already done, within two weeks.”

Effect of Appointment

This by itself is not revolutionary given that the Intermediary Rules, 2011 have been promulgated for more than two years. The recent court direction may have two unintentional outcomes. Firstly, it will begin the implementation of the Intermediaries Rules, 2011. These Rules, which are presently under challenge before the Supreme Court incentivise censorship by private intermediaries. Hence, this problematic law will now be enforced more widely. Secondly, the compulsory appointment of a Grievance officer may not be the best option for smaller technology companies which rely on customer generated data. Hiring or assigning a particular person to fulfil such a function may be a high cost for a smaller intermediary.

Other Concerns

Other concerns which arise from this Petition are, the validity of consent of minors to create accounts on social networking websites. Most social networking websites allow the creation of accounts even to minors who are more than 13 years old. The Order also records that though social networking websites seem to comply with Rule 3(1) of the Intermediary Rules, 2011 by putting up Terms of Use and Privacy Policies, their compliance with Rule 3(2) which specifies the contents of terms needs to be examined.

It is to be stressed that the Intermediary Rules, 2011 are under challenge under a batch of Petitions clubbed with the Shreya Singhal v. Union of India, even though there is no stay against their operation.

https://docs.google.com/file/d/0B_-V5K_jBhEXNy1KRXEyemlLM00/preview

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Delhi HC lifts the Chautala Gag Order

The Delhi High Court by its judgement in Multi Sceen Media v. Vidhya Dheer and Others [FAO (OS) 119/2013], on 28th February, 2013 lifted an injunction on the telecast of a television programme reporting on the conviction of Mr. Om Prakash Chautala. The injunction order was passed reasoning that since Mr. Om Prakash Chautala was recently convicted and was filing an appeal as well as seeking bail, the telecast would interfere with his right to a fair trial and prejudice the legal proceedings.

The Division Bench overturning this injunction in appeal in no uncertain terms held that there should be an exercise of restraint in granting such “gagging orders.” The formulation commences where the Court reasons that the case concerns a conflict between, “the right to tell” and “the right to free trail”. For the latter it extends the inherent contempt power of the court and states that a publication can be prohibited in two ways, first when it impacts the impartiality of a judge and secondly when it prejudices the ability of the court to ascertain the true facts of the case.

This decision is an exercise in good sense where it seeks to apply the right interpretation to the right law. When discussing the aspect of a judge being influenced by a publication, it puts the onus on the judge, saying they should train themselves not to be influence by portrayals in the media. On the point of the publication prejudicing court proceedings, the Court states that merely because a telecast is on a pending case, does not mean that such prejudice will be caused automatically. It states that the Court has to go through the contents of such a telecast and the transcript and has to make a factual determination which is limited to it.

In Chautalas case, since the injunction did not satisfy these requisites, not reasoning the actual prejudice which would be caused or the Court even evaluating the telecast contents and transcripts, the Division Bench holds that the injunction must be set aside.The Judgement is clearly progressive, it in no uncertain terms holds that publications on pending trials by themselves are not contemptuous and even aid in checking judicial malpractices. A copy of the judgement is can be downloaded from here.

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IIPM Blocking Suit and Blocking Order

At this time I am posting the copy of the pleadings in Ruchir Sharma v. Google India 169/2012 alongwith the Order dated 28.01.2013. The case has been filed before the 2nd Additional Judge, Darba. It appears the block orders for several URL’s critical of IIPM and its founder were made pursuant to this Order.

The Order which is on the last two pages of the PDF is in Hindi and a translated copy of it is pasted below as well.

You can access the PDF here

A unauthenticated translation of the Order dated 28.01.2013 is given below. I would stress that the translation cannot be relied upon in court proceedings and may contain errors, it is only for the use of communicating the order to the general public.

Plaintiff: Shri Vallabh Tripathi, through Advocate

Defendant №1& 2: Shri H.B Gupta, Advocate

Defendant №4 : Shri NK Shrivastava, Advocate

Defendant №3: None

The Plaintiff filed an Application under Order 6, Rule 17 and Order 1, Rule 10 of the Code of Civil Procedure( C.P.C) and one more application under Order 39, Rule 1 and 2 of CPC. The Defendants 1, 2 and 4 seek time to file replies. This is objected by the Plaintiff on the ground that Defendant continues to publish the defamatory material against the Plaintiff. In this connection, the defamatory speech as in Schedule 3 and Schedule 4 which lists the documents have been presented in this Court.

The Plaintiff has submitted that the Hon’ble Delhi High Court in Civil Suit 2305/2009, E-2 Labs Information Security Pvt. Ltd. and Others Versus Robert Petroni and Others and Civil Suit 1077/2011, Narang Association Versus Pranay Gambhir and Others by Order dated 6th November 2012, Order copies of which were presented in this Court, injuncted the publication of the defamatory materials and the Group Coordinator, Cyber Law Division, DIT, Ministry of IT has also been directed to block the defamatory websites till the next date of hearing.

In this matter, by Application dated 18.05.2012, the Plaintiff has submitted that despite the direction of the Court, the defamatory materials are being published. In the facts and circumstances of the case, till the next date of hearing, the defendants and the Group Coordinator be injuncted from publishing defamatory material and be directed to block the materials.

The Defendants shall file their Replies Under Order 6 , Rule17 and Order 1, Rule 10 and Order 39, Rule 1 and Rule 2 of CPC by 28th February 2013.

T.N Chand

IInd Additional District Judge, Dabra, Gwalior

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The Avnish Bajaj SC Decision : More about corporate than intermediary liability

Last week the Supreme Court of India, in Aneeta Hada vs M/S Godfather Travels (via @legallyindia) decided the Special Leave Petition filed by Avnish Bajaj, for quashing a criminal case against him relating to a pornographic MMS posted for sale on the Baazee website, of which he was the CEO at the time. The origin of the case is an order by the Metropolitan Magistrate dated 14th February 2006 which took cognizance of offences under Sections 292 and 294 of the IPC and Section 67 of the IT Act.

The High Court Decision

Avnish Bajaj to quash the proceedings had originally approached the Delhi High Court. His petition was partly allowed by the High Court, which quashed proceedings under Sections 262 and 264 of the IPC however maintained the charges under Sec. 67 readwith Sec. 81 of the IT Act.

The Delhi High Court reasoned that the IPC does not recognise the concept of automatic criminal liability attaching to the director where the company is not made an accused. The Court noted that not even a prima facie case for the offences under Sections 292/294 of the IPC was made out against Avnish Bajaj, with the charge sheet only seeking to implicate him in his designation as MD of Bazee and not in his individual capacity.

However, with regard to Sec. 67 which contains the substantive offense for publishing pornography, the Court reasoned that since it had a deeming provision for corporate liability under Sec. 81, the trial with regard to this charge could proceed.

It categorically noted that:

“(e) A prima facie case for the offence under Section 67 read with Section 85 IT Act is made out against the petitioner since the law as explained by the decisions of the Supreme Court recognises the deemed criminal liability of the directors even where the company is not arraigned as an accused and particularly since it is possible that BIPL (EIPL) may be hereafter summoned to face trial.”

Appeal to the Supreme Court

As it turns out BIPL (Bazee Internet Private Limited), which is the company who owned Bazee.com before it was transferred to eBay was never arraigned as an accused. Hence, the limited issue which the appeal in the Supreme Court came to be concerned with is the finding of the High Court on deemed criminal liability. Put another way the question which was posed in the Case was, whether an official of a company can be made an accused without the company itself being made an accused.

In reaching its decision the Supreme Court first studied previous holdings in C.V. Parekh, Anil Hada, Sherotaan Aggarwal. It noted that the holdings in Anil Hada and Sherotaan Aggarwal could not be sustained as they were 2 bench judgments and were contrary to the purport of C.V. Parekh which is a 3 bench judgement. In a sense the court noted both of them as per incuriam.

Then the Court held that the 3 bench judgment in C.V. Parekh is the correct proposition of law inasmuch when the principal offence has been alleged against a company and it is not made an accused then the directors and the employees to whom the vicarious liability cannot be tried. Interestingly much of the analysis of the court was based on interpretation of Secs. 141 and 142 of the Negotiable Instruments Act, which is then supplanted to Sec. 81 of the IT Act.This was possible because these provisions were similarly worded, or as lawyers like to call it mutatis mutandis.

Some Thoughts

Firstly, why was no cross appeal filed by the Government against the Order of the High Court under which the prosecution under secs. 262/264 of the Indian Penal Code was quashed ? Certainly there does not seem to be any good reason for not appealing the decision given how enthusiastically and without any inhibitions of propriety the State locked up the petitioner in jail.

Also, the verdict wherein it omits a discussion of Sec. 67 of the IT Act or Sec. 79 which deals with intermediary liability comes as a disappointment for many who would have wanted clarity on intermediary liability. This is given that the Avnish Bajaj was the first high profile case on intermediary law before the Supreme Court. However, seeing at how the case was decided by the High Court, the grounds of challenge before the Supreme Court would understandably and fairly be limited.

In my view this case would have a limited impact on the Vinay Rai-Google/FB High Court litigation. This is because I anticipate that the companies themself have been made an accussed. If not then the holding in this case should in all likelyhood may assist the quashing petitions filed by Google and Facebook.

While we are discussing the Vinay Rai case, there is one more case pending in the Supreme Court which in my view should ivolve a study of intermediary liability. The case titled as Google India Pvt. Ltd., vs M/S.Visaka Industries Limited, involves a high court refusing to quash charges against Google. I have previously blogged about this here.

Whatever be said, given the amount of litigation on intermediary liability its only a matter of time before we have some authoritative pronouncements on the subject.

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Aneeta Hada vs M/S Godfather Travels

The Supreme Court of India decided the Special Leave Petition filed by Avnish Bajaj, for quashing a criminal case against him relating to a pornographic MMS posted for sale on the Baazee website, of which he was the CEO at the time. The Court held that when the principal offence has been alleged against a company and it is not made an accused then the directors and the employees to whom the vicarious liability cannot be tried. As per this holding it quashed charged under Sec. 67 read with Sec. 81 of the IT Act.

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Nirmaljit Singh Narula vs Indijobs At Hubpages.Com

Aggrieved by the contents of the online Article, “is nirmal baba a fraud ?”, Nirmal Baba approached the Delhi High Court in the case titled as, Nirmaljit Singh Narula vs Indijobs At Hubpages.Com. The Case which prayed for a mandatory injunction alleged that contents of the Article were defamatory and harming his reputation and standing. This case raises several important issues including, liability of intermediaries, the IT rules, jurisdiction of internet websites and blocking of websites.

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