Domain name registrars’ (DNR) repeated non-compliance with court orders could be construed to be a violation of public order, the IT Ministry informed the Delhi High Court in a March 25th status report, LiveLaw reported. This could be “considered relatable grounds for ordering the blocking of the website/URL of such non-compliant DNR by the competent court under section 69A of the IT Act, 2000,” the Ministry noted.
Section 69A empowers the Indian government to block public access to information online on various grounds—including public order, defence of India, security of the State, and more.
What’s this case about?: The court was hearing petitions filed by trademark owners—like Dabur, Tata Sky, Mother Dairy, Ultratech Cement, Microsoft, Snapdeal, Jockey, and more—against the misuse of their marks in domain names registered by “unauthorised persons.” In February, the court ordered the IT Ministry and the Department of Telecommunications to take action against domain name registrars who fail to comply with India’s platform regulation rules, the IT Rules, 2021. The court also called for action against domain name registrars who are yet to appoint grievance officers, or those that failed to follow orders issued by courts and authorities. Five domain name registrars appeared to have been blocked in India that month, although it was unclear on what grounds the action was taken.
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What else did the Ministry’s report say on Section 69A?: The Ministry also expressed concerns over such blockings, noting that “various domain name registrants could be inconvenienced in accessing services of renewals, transfers, record updates, name update etc., if the website/URL of Domain Name Registrars are blocked”. In a March 27th order, Justice Pratibha M. Singh directed the parties to make submissions during the next hearing on May 26th.
Why it matters: As the IT Ministry noted in its status report, the IT Rules, 2021, lack penalties for non-compliance. The above-mentioned Section 69A mandate may add incentives to comply with India’s platform regulation laws. However, Section 69A has also been criticised for its broad application, often at the cost of access to information and speech online. How these criticisms will interact with trademark infringement cases like these remains to be seen.
What else did the status report say?: The status report was signed by a “Mr. V. Chinnaswami”, Scientist at the IT Ministry. The Court further highlighted the Ministry’s other arguments:
- Safe harbour compromised by lack of due diligence: Safe harbour protections will not be applicable if intermediaries—like domain name registrars—don’t comply with the due diligence requirements laid out for them in the IT Rules, 2021. Safe harbour, listed under Section 79 of the IT Act, protects intermediaries from being held liable for the third-party content they host.
- No penalties for violating IT Rules, 2021: However, beyond the loss of safe harbour, the IT Rules, 2021, do not prescribe penalties or fines for infringing their due diligence provisions, the status report noted. These provisions include directing intermediaries to publish the names and details of their grievance officers on their platforms for users to make complaints with.
- Actions ICANN can take against non-compliant DNRs: The IT Ministry wrote to ICANN on the issues of domain name infringement and domain name registrars’ non-compliance with court orders. ICANN is a global non-profit which “through its contracts with registries (such as dot-com or dot-info) and registrars (companies that sell domain names to individuals and organisations)…help[s] define how the domain name system functions and expands”. On January 31st, ICANN responded that:
“Section 220.127.116.11.4 of the RAA (Registrar Accredited Agreement) states that ICANN may terminate a registrar’s RAA where a court of competent jurisdiction determines that the registrar has failed to comply with the terms of an order issued by a court of competent jurisdiction relating to the use of domain names sponsored by the registrar. If evidence is received, ICANN Contractual Compliance would follow its established process and take enforcement action as permitted by the RAA. The RAA provides various means of redress for consideration; termination of the RAA is not the only option provided”.
At the ICANN76 meeting from March 11th to 16th, India’s representative to ICANN’s Government Advisory Committee further highlighted the issues of domain abuse, lack of stringent verification processes, and the reliability of the registrant’s data in the domain name space.
- Global mechanisms for domain name dispute resolution highlighted: The report referred to the “existing UDRP and INDRP policies,” the court order noted. A reminder: UDRP refers to ICANN’s “Uniform Domain-Name Dispute-Resolution Policy”. INDRP refers to the Indian government’s policy to govern disputes relating to “.in” or “.bharat” domain names. “In the US, apart from the ICANN policy on Domain Name Dispute Resolution provisions of the Anti- cybersquatting Consumer Protection Act, 1999 can also be invoked,” the Ministry added in its status report.
Case also concerns the jurisdiction of courts: The case also centres around which courts domain name registrars are bound by, Justice Singh’s March 27th order added.
“The issues raised by MeitY in its status report as also the issues being considered by this Court on behalf of several IP owners and DNRs, raise various questions in respect of how to give effect to orders passed by Indian Court, especially by DNRs, who specifically take a stand that they would only be bound by orders passed by the competent Courts within their own jurisdiction.”
A reminder: Justice Singh separately presides over Neetu Singh v Telegram. Last year, she directed Telegram to submit information on the users sharing infringing material on the platform. Disagreeing with Telegram’s arguments that it was subject to the jurisdiction of local courts in Singapore, where its servers were located, Singh noted:
“Courts in India would be perfectly justified in directing Telegram, which runs its massive operations in India to adhere to Indian law and adhere to orders passed by Indian Courts for disclosure of relevant information relating to [copryight] infringers. Infringers cannot be permitted to seek shelter under Telegram’s policies merely on the ground that its physical server is in Singapore”.
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