On July 8, 2019, the Delhi High Court passed an order that had major implications for online intermediaries who served as e-commerce platforms. The Court held that e-commerce platforms were required to observe due diligence as per the Intermediary Guidelines, 2011; not to abet, conspire and aid or induce the commission of a violation of intellectual property; and to also immediately remove and disable access to the infringing material on being notified. The Court held that the question of actual knowledge of infringement would be a matter of trial and further failure to adhere to their own policies would make the e-commerce platforms liable. The case arose after Amway India Enterprises Ltd., one of India’s largest direct selling companies, filed suits against the defendant e-commerce companies to restrain them from...
Proposed rules to amend the Information Technology (Intermediaries guidelines) Rules, 2011
In December 2018, the Ministry of Electronics and Information Technology released the Intermediary Liability Guidelines (Amendment) Rules, which would significantly alter the intermediary liability regime in India. The Rules for criticised by all corners, including tech-giants, civil society, research organisations. Some of the major problems with the Bills are: Active monitoring of content leading to pre-screening: Intermediaries are required to deploy-technology based automated tools or appropriate mechanisms with appropriate controls to proactively identify and remove access to unlawful content. Proactive monitoring requirement would mean that intermediaries would have knowledge and oversight over information that is transmitted on their platform and would thus no longer be amenable to Safe Harbour protection. Local...
On September 27, 2018, the High Court of Uttarakhand directed Internet Service Providers to block the publication/transmission of all obscene material in electronic form, including child pornography under Rule 3(2)(b,c) of the Information Technology (Intermediaries Guidelines) Rules, 2011. Further, it directed the Ministry of Communications and IT to suspend the Internet Service Licenses of those intermediaries that failed block pornographic websites. The case arose in September 2018 when the High Court of Uttarakhand (India) took notice of newspaper articles, which reported that a student was raped in the premises of a local school after the culprits had watched pornographic movies together. On December 7, 2018, a division bench of the same Court closed the matter stating that the Government had assured the Court that...
On November 2, 2018, the Delhi High Court laid down detailed conditions for an e-commerce intermediary needed to meet in order to claim safe harbour protection under Section 79 of the Information Technology Act, 2000. Through this judgement, the Delhi High Court raised the threshold that e-commerce intermediaries needed to meet in order to claim safe harbour protection under Section 79 of the Information Technology Act, 2000. The Court enlisted 26 possible services that may be relied upon to determine whether an intermediary was a mere conduit or an active intermediary. The case originated after the Petitioner Christian Louboutin, a luxury goods brand, alleged that the defendant company Darveys.com was indulging in unauthorised sales by selling its products thus violating the Trademarks Act, 1999. The website, among...
The manufacturer of goods using the trademark/brand Beverly Hills Polo Club filed an application for an injunction in the Delhi High Court to take down URLs of sellers marketing counterfeit products using the plaintiff’s brand name. On 16 July, 2018, the Court ruled in favour of the petitioners and ordered Amazon to take down sellers' accounts who were selling counterfeit products. The order, however, did not impose an undue burden on Amazon to monitor new URLs that popped up that sold counterfeit products and instead directed Amazon to share the details with the petitioner of all the sellers associated with the offending URLs.
In 2015, an NGO named Prajwala wrote a letter to the Supreme Court raising concerns about videos depicting sexual violence being distributed on the internet. The letter sought to bring the Court’s attention to the existence of such videos, and their rampant circulation on online platforms. Based on the contents of the letter, a suo moto petition was registered, with Google, Facebook, WhatsApp, Yahoo and Microsoft impleaded as parties. The Court directed that a committee be constituted to advise the Court “on the feasibility of ensuring that videos depicting rape, gang rape and child pornography are not available for circulation.” One of the stated objectives of the committee was to examine technological solutions to the problem – for instance, auto-blocking with the use of keywords and hashes. The orders of the Court...