Just because Telegram chooses not to locate its servers in India doesn’t mean that Indian courts will not deal with copyright disputes, the Delhi HC said in a decision on Wednesday, August 30.
Delhi HC ordered Telegram to disclose details of creators and operators of certain Telegram channels who were in violation of the copyright laws. The court has sought details including phone numbers, IP addresses, email addresses in a “sealed cover” within a period of two weeks.
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Background of the case:
Neetu Singh, an educator who runs a coaching centre for competitive exams, filed a case against Telegram and various unknown persons because her copyrighted study material was being shared and sold on the popular messaging service.
Before resorting to the lawsuit, Neetu had reported these channels to Telegram and many of these channels were taken down as well. But she was still not convinced because new channels were being created as and when the old ones were taken down, almost on a daily basis.
Here’s an image representing how the shared material looks like on Telegram channels:
Source: Delhi HC Judgement
Why it matters: It is well known that Telegram is used to download movies, softwares, study material and more, free of cost. This violates the copyright of certain creators. But the communication app has a duty towards its users to keep their conversations and identity confidential since a lot of personal and sensitive information is shared on social and messaging platforms. A breach of user’s privacy can set a precedent for more such orders asking for user’s personal and group chats.
Privacy vs copyright law compliance
Ms. Neetu Singh and K.D. Campus Pvt. Ltd. vs TELEGRAM FZ LLC & ORS.
Both, the plaintiff (Neetu) and the defendant’s side (Telegram) made intriguing arguments which touched upon important aspects of privacy, copyright infringement and how social and messaging platforms will operate in the future.
Understanding Neetu’s arguments
- On identification and remedies: Neetu wants to avail remedies for the loss she had to incur due to copyright infringement, and to deter the person who infringed copyright. But to avail remedies, it is important to identify the people who did it, the details about which Telegram doesn’t want to share.
- Numerous channels: Neetu’s counsel argued that new channels were being created after the old ones were taken down by adding prefixes and suffixes. (The author thinks that this indicates that those creating the new channels are the same as those who created the old channels).
Telegram’s Arguments:
- Taking down telegram channels: Telegram’s counsel argued that the current arrangement where Telegram is taking down the copyright infringing channels is “sufficient to protect interests of the Plaintiffs”
- Servers in Singapore: “Telegram has its servers in Singapore which has encrypted data. Accordingly, decryption of that data would not be permissible except as per the laws of Singapore”. The counsel then said that Singapore’s Personal Data Protection Act only allows a court based in Singapore to reveal certain information, a court in India would not be empowered to do the same.
- Violation of the IT Act: By sharing the required information, Telegram would be violating the contract between itself and the subscriber. This would constitute an offence under Section 72A of the IT Act, 2000.
- Puttaswamy judgement: Until a law requires disclosure of such information, it is not permissible to direct disclosure of the same.
Singapore law or Indian law?
- Telegram’s counsel pointed out that under Telegram’s privacy policy, the subscriber’s information cannot be revealed. The defendant’s counsel argued that clause 8.3 of Telegram’s privacy policy makes it clear that “until and unless a person is expected to be a terror suspect, the disclosure of the subscriber information cannot be made”.
An opinion: Here’s what Telegram’s privacy policy actually says about sharing data with law enforcements – “If Telegram receives a court order that confirms you’re a terror suspect, we may disclose your IP address and phone number to the relevant authorities. So far, this has never happened”. Although this does not say that Telegram will only share data to identify terror suspects, it also does not mention any other use-case in which Telegram plans to share data with law enforcements. - In response to this the plaintiff argued that the courts should not rely on Singapore laws as “this Court or any Court of competent jurisdiction would be empowered to pass directions in respect of a mobile platform which is operating in India.” The plaintiff’s counsel went on to add that “the laws of Singapore may apply in the context of a request being made by any private party to Telegram, to disclose information. However, this would not apply in the case of a Court order being passed.”
Interesting points to note from the order and their analysis:
- Repeated blocking of the channels is proving to be insufficient as “the number of channels that can be created in this manner are innumerable”.
Author’s take: This quashes one of arguments of Telegram which says that blocking channels would be enough. - The court observed that Telegram’s data is stored outside India but Telegram has a policy to share data with its parent companies in Dubai and British Virgin Islands.
- “Jurisdiction of this Court cannot be ousted” merely because Telegram retains its data outside of India.
- Infringers cannot be permitted to seek shelter under Telegram’s policies merely on the ground that its physical server is in Singapore.
- Moreover, the court said that the PDPA in Singapore recognised violation of law as being an exception to privacy rights of individuals.
Author’s take: The last four points quash another argument made by the defendants arguing that Singapore laws should be applied for dissemination of data
- The Court cannot perpetually supervise such infringements and thus, the origin and source of the infringing material has to be traced.Author’s take: This observation should be looked at carefully as they ask Telegram to reveal the identity of its users. This could set a precedent for asking social media and messaging companies to share information with its users in case of copyright infringement. Even though it seems harmless in a case like this but if it is used it starts getting used frequently then its implications can be severe. For example, if you share a screenshot of a paid article, can the court ask the messaging company to share your data?
- Such production of details of infringing devices or persons or other sources, is not a comment on Telegram’s liability and does not derogate from safe harbour provisions. In fact, it is aligned with the view of Telegram’s claimed role as an intermediary, which claims to act as a conduit of information.Author’s take: There’s a major debate on whether social media companies should be treated as publishers or intermediaries. If they’re treated as publishers they would be liable for the content posted. In this case, they could be charged with UAPA, sedition, defamation for content posted on their platform. But social media companies have always tried to communicate that they are intermediaries and not publishers to get a safe harbour from such legalities. The court here reaffirms Telegram’s role as an intermediary.
- The creators of the Telegram channels unauthorisedly and illegally disseminated the Plaintiffs’ copyrighted works.
- Users on Telegram are creating new channels and operating the same in private mode, hence they are able to mask their identity.
- The right to freedom of speech or the right to life including the right to privacy cannot be used by any person or entity, let alone an infringer, in order to escape the consequences of illegal actions.
- The right to privacy, which is an intrinsic part of the right to life and liberty, and the freedoms embodied in Part III is subject to the same restraints which apply to those freedoms.Opinion: The last two points reveal Delhi HC’s stance on the right to privacy. It states that the right to privacy will have the same exceptions as the ones mentioned in right to life and liberty. Moreover, the right to privacy may become void if trying to escape from the consequences of illegal actions.
- As per an extract from K.S. Puttaswamy (supra) “it is clear that the Supreme Court recognises that if there is a law in existence to justify the disclosure of information and there is a need for the disclosure” then privacy cannot be a ground to justify non-disclosure, as long as it is not disproportionate.Author’s take: This part talks about the limitations to privacy mentioned in the Puttaswamy judgement, which declared privacy a fundamental right.
Will Telegram give in to the demands of the court?
WhatsApp has challenged section 4(2) of IT Rules of 2021 which require messaging platforms to identify the first originator of a particular information as it would require WhatsApp to break end-to-end encryption and compromise privacy of individuals.
Telegram has been tasked with a similar challenge, to identify the creators and operators of certain telegram groups. Although normal chats in Telegram do not support end-to-end encryption, Telegram says that its servers based in Singapore have “encrypted data”.
Telegram has two weeks to comply with the order. Whether it will follow the order or resort to any other legal means remains to be seen.
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Also read:
- IT Rules Hearing: Delhi High Court Asks Govt To Reply To WhatsApp’s Lawsuit Alleging Rules Are Unconstitutional
- Google And Telegram Face Hefty Fines For Not Playing Ball With Russia Over Illegal Content
- Telegram Could Face Fines For Not Complying With German Law: Report
- Phone Numbers Of 500 Million Facebook Users For Sale On Telegram: Report
