Intermediaries' Obligations in Addressing Intellectual Property Infringement Complaints on Their Platform
This article is focused on E-commerce platforms, which have revolutionized shopping convenience but have also opened avenues for counterfeiters and infringers. The prevalence of counterfeit, duplicate, and infringing goods on these platforms not only goes against public interest but also violates the intellectual property rights of brand owners. When a brand owner identifies trademark or copyright infringements on an e-commerce platform, the standard procedure involves sending a takedown notice to request the removal of the infringing listings. Major platforms like Amazon and Flipkart have established grievance redressal mechanisms to address IP infringements internally. However, on other platforms, brand owners must directly issue takedown notices to have infringing content removed. This process aims to protect intellectual property rights and maintain a fair marketplace for both consumers and legitimate brand owners. The response of e-commerce platforms to intellectual property
Introduction:
Internet intermediaries encompass a range of entities that enable internet usage, such as network operators, internet service providers, social networks, search engines, e-commerce sites, and internet cafes. Social networks allow users to share self-created content, while search engines index and provide access to user-generated content. E-commerce platforms serve as online marketplaces for buying and selling goods and services.
Initially, these platforms were seen as champions of free speech, where users could express opinions without editorial oversight. They were expected to self-regulate to prevent illicit content, hence granted 'safe harbor' protection against third-party content. However, the exponential growth of these intermediaries and the vast amount of user-generated data they handle daily have made self-regulation unfeasible. The proliferation of misinformation and illicit content on these platforms has sparked global concerns. Instances of intellectual property rights violations through content hosted by these intermediaries have further fueled calls for increased liability on them for intellectual property rights infringements.
In the last few decades, many countries, including India, have significantly increased their reliance on data and the digital world. India, being at the forefront of the Internet boom, has been transitioning into a digital economy. The Government of India's flagship program, Digital India, aims to make India a digitally empowered society. The key vision areas of the program include making digital infrastructure a core utility to every citizen, providing governance and services on demand, and digitally empowering the citizens. The private sector is also playing a crucial role in enabling Digital India initiatives.
As India transitions into a digital economy, it has opened its market to companies at the forefront of this technology race. The Indian government has been actively working on developing a robust legal framework to address the challenges posed by the digital economy, including intellectual property rights infringements. The framework aims to strike a balance between protecting intellectual property rights and fostering innovation and digital growth.
Status of Intermediaries under Information Technology Law, 2000 (IT Act):
Under the Information Technology Act, 2000, intermediaries have been given a special status and exemption from any liability for any third-party information, data, or communication link made available or hosted by them. Section 79(2) of the IT Act essentially covers cases where the activity undertaken by the intermediary is of a technical, automatic, and passive nature. For applicability of Section 79(2), the intermediaries should neither have knowledge nor control over the information which is transmitted or stored. Furthermore, Section 79(3)(b) of the IT Act and Rule 3(4) of the Intermediary Guidelines envisage a 'notice and takedown' regime, wherein the intermediary is required to take down unlawful content upon receiving actual knowledge of its existence.
The obligation for intermediaries to take action arises solely upon receiving actual knowledge. The term "actual knowledge" was defined by the Supreme Court of India in the case of 'Shreya Singhal v. Union Of India' as knowledge obtained through a court order, as intermediaries are not meant to act as adjudicators in resolving complex legal matters. This requirement of a court order was specifically limited to acts violating Article 19(2) of the Constitution of India, which outlines restrictions on free speech and expression.
Moreover, the Delhi High Court, in the case of Kent RO Systems Ltd. & Anr. v. Amit Kotak & Ors, highlighted that an intermediary's responsibility to remove or disable information on their platform only arises upon receiving a complaint. The IT rules do not mandate intermediaries to proactively screen all content hosted on their platforms for potential infringements. This approach ensures that intermediaries act upon specific complaints rather than engaging in broad monitoring activities, striking a balance between addressing infringements and preserving the freedom of online expression.
Intermediaries in India often rely on the judgments mentioned earlier to justify their decision not to remove links to infringing products. While the necessity of a court order is specifically applicable to cases involving violations of Article 19(2) of the Constitution of India, brand owners frequently find themselves compelled to initiate legal proceedings to obtain takedown orders against infringers. This situation arises because intermediaries typically decline to take action without a court order, even in cases not directly related to free speech restrictions. As a result, brand owners are left with no choice but to resort to court interventions to address intellectual property infringements effectively, highlighting the challenges faced by rights holders in enforcing their intellectual property rights online.
However, The Delhi High Court in the case of Facebook Inc. v. Surinder Malik held that intermediaries have a duty to take down the posts that have been brought to their notice by the plaintiff in terms of Section 79(3) by following due diligence and that the requirement of a court order is strictly confined to subject matters laid down under Article 19(2) of the Constitution of India.
Liability in case of active participation of intermediaries
In cases where intermediaries engage in intellectual property infringement, they lose the protection provided by the Information Technology Act. The High Court of Delhi, in the case of Christian Louboutin SAS v. Nakul Bajaj and Ors., determined that the defendants' actions went beyond that of an intermediary. They were involved in identifying sellers, actively enabling and promoting them, and selling products in India. The court emphasized that as long as intermediaries act as mere conduits or passive transmitters of information, they retain their intermediary status. However, merely labeling themselves as intermediaries does not automatically qualify all e-commerce platforms or online marketplaces as intermediaries. This ruling clarifies that active involvement in facilitating intellectual property infringement can lead to intermediaries losing their legal protections under the IT Act.
Conclusion:
In conclusion, in India, intermediaries are not required to address intellectual property infringement unless they have 'actual knowledge' of the violation, which may come in the form of a court order or a direct notification from the brand owner. However, in practice, intermediaries typically do not respond to brand owner requests unless accompanied by a court order.
While India is actively working towards establishing a clear framework for intermediary liability, the process has not always been consistent. The search for a comprehensive framework within which intermediaries should operate continues to be a work-in-progress.
