With courts back in business after the winter break, here’s a round-up of the biggest tech policy cases to keep an eye on this January.
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The Delhi High Court’s Ongoing Tryst with Copyright Cases
January 10th, Telegram faces Jagran Prakashan: Back in 2020, the newspaper giant challenged Telegram for hosting free copies of its copyrighted e-newspapers without permission. These were times when the IT Rules of 2011 were in force—Jagran Prakashan argued that under them, “intermediaries” or platforms like Telegram were obliged to take down the flagged content within 36 hours. The case has moved at what may be described as a sluggish pace since.
- Case number: CS(COMM) 146/2020.
January 12th, Academic publishers pending challenge against pirate site Sci-hub: A group of major academic publishers challenged Sci-Hub and its founder Alexandra Elbakyan for the website’s copyright violations. Sci-hub allows users to access free copies of paywalled articles, a service described as crucial for many scholars who lack access to these expensive materials otherwise.
- Case number: CS (COMM) 572/2020.
January 12th, When trademark infringement cases threw up questions on the IT Rules, 2021: Last year, Starbucks challenged the likes of the National Internet Exchange of India (NIXI) and domain registrars for hosting websites that infringed on their trademarks. The retail giant argued that these companies have obligations under India’s platform regulation rules (the IT Rules, 2021) to take “reasonable efforts” and “cause” users not to upload deceitful or misleading content. However, the bench (comprising of a judge who has faced many similar challenges) observed that there was no clear legal position on what “reasonable efforts” platforms can legitimately take under the IT Rules to address these content types. So, Justice C. Hari Shankar directed the IT Ministry to clarify, for once and for all, what “reasonable efforts” platforms ought to take to remain compliant with the IT Rules. Although the ministry was supposed to file an affidavit last year, the court’s orders are unclear on what the final position is.
- Case number: CS (COMM) 224/2023, IA 7252/2023, IA 8844/2023, and IA 12183/2023.
January 15th, Up next in the dynamic+ injunction chronicles: In a first, the Delhi High Court’s Justice Pratibha Singh issued a “dynamic+” injunction last year—the order not only protects a copyright owner’s currently owned works against infringement, but their future (or yet-to-be-created) works too. The order came about in a case filed by studio giants against 16 pirate websites accused of uploading their copyrighted shows and content online without authorisation. “Copyright in future works comes into existence immediately upon the work being created, and Plaintiffs may not be able to approach the Court for each and every film or series that is produced in the future, to secure an injunction against piracy,” Justice Singh observed.
- Case number: CS (COMM) 514/2023, and IA 14120/2023, 14122/2023.
On Free Speech and Expression
January 5th, After some delays, the fact check amendment judgment is on the cards: Although expected last month, the Bombay High Court is expected to finally decide on the constitutionality of a proposed government-appointed body empowered to fact check “fake, false, or misleading” government-related information online. During multiple hearings last year, the proposal’s opponents informed the court that the unit may empower the ruling government to determine what constitutes the “truth” online. Justice G.S. Patel and Neela Gokhale’s verdict may also help decide the constitutionality of similar government-appointed fact-check units being proposed down south in Tamil Nadu and Karnataka.
- Case numbers: WP (L) 9792/2023 (Kamra); WP (L) 14955/2023 (Editors Guild of India); IA 17704 in WP(L) 14955/2023 (News Broadcast and Digital Association); WP 7953/2023 (Association of Indian Magazines).
January 29th, the resurgence of the BBC’s “defamatory” Narendra Modi documentary*: The Rohini District Courts in Delhi will hear politician Binay Kumar Singh’s challenges against the BBC’s banned documentary on Prime Minister Narendra Modi. A member of the Bharatiya Janata Party, Singh claimed that to be injured by the production’s findings on Hindu right-wing organisations like the Rashtriya Swayamsevak Sangh and the Hindu Vishwa Parishad. For example: “the Plaintiff has worked assiduously over decades to build his career and reputation, and if this matter is left unchecked, it will permanently demolish the Plaintiffs [sic] hard-earned reputation and career,” Singh colourfully argued before the court last year. The controversial documentary probed the Prime Minister’s alleged involvement in the 2002 Gujarat communal riots, where over 1,000 people died.
- Case number: CS DJ 362/2023.
January 30th, Tanul Thakur’s defence of satire continues: The Delhi High Court will hear Tanul Thakur’s challenge against the blocking of his website www.dowrycalculator.com, a satirical take on the Indian custom of asking and giving dowry during marriages. The website was blocked a few years ago by the Indian government. Notably, India recently passed three new criminal laws (to replace colonial-era frameworks), one of which criminalises “ironic” defamatory speech, or speech “expressed in the form of an alternative”, a move that may hurt comedic and satirical speech in the country.
- Case number: WP (C) 788/2023
Other important cases
January 16th*, Defending privacy on WhatsApp in Tripura: The Tripura High Court will continue hearing WhatsApp’s challenges against a lower court’s order directing the messaging app to disclose the “first originator” of a message allegedly spreading misinformation. Last year, the High Court stayed the lower court’s order, arguing that it hadn’t established how the message threatened “public order” before directing WhatsApp to take the privacy-infringing step.
- Case number: WP (Crl) 2/2023.
January 22nd, Google’s tussle with competition regulators continues**: The Supreme Court will hear the tech giant’s challenge against a Competition Commission of India order upholding its allegedly anti-competitive “abuse” of the Android market in India.
- Case number: CA 4098/2023.
January 31st, Rallying against facial recognition policing in the south: The Madras High Court will hear Chennai resident Akhilesh Kumar Kandasamy’s plea to restrain the Tamil Nadu police from using facial recognition policing. With arguments also filed against uploading citizens’ pictures to the state’s facial recognition “databases”, Kandasamy has challenged the move on grounds of proportionality, privacy rights violations, and more.
- Case number: WP 24338/2023.
January 2023, Will the Supreme Court hear two states’ challenges against their online ‘gambling’ bans being struck down? A few years ago, the Tamil Nadu and Karnataka governments moved the Supreme Court to review high court verdicts quashing their “online gambling” bans. The bans controversially included prohibitions on non-gambling games too. On December 7th, the Supreme Court adjourned the case for five weeks.
- Case number: C.A. 6124-6131/2023 and SLP(C) 19981-19988/2021.
* While the official court website lists this date as the next hearing, an accompanying order could not be found.
** This date has been computer-generated by the Supreme Court of India and may be subject to change.
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