Full Text
HIGH COURT OF DELHI
Date of Decision: 9th November, 2022
STAR INDIA PRIVATE LIMITED & ANR. ..... Plaintiffs
Through: Mr. Sidharth Chopra, Mr. Yatinder Garg, Ms. Kriti Jindal, Mr. Akshay Maloo and Mr. Rimjhim Tiwari, Advocates.
Through: Mr. Anjani Kumar Rai, Mr. Sparsh Karnwal, Mr. Manmohan Kumar Jha and Ms. Anadi Mishra, Advocates.
(M:8800829883)
Mr. Parva Khare, Advocate for D-12.
(M:9911983636)
Mr. Apoorv Kurup, CGSC with Ms. Nidhi Mittal and Ms. Aparna Arun, Advocates for D-28 & 29.
(M:8447971163)
JUDGMENT
1. This hearing has been done through hybrid mode.
2. Vide previous order dated 22nd August, 2022, an ex-parte ad interim injunction was granted in this matter restraining infringement of the Plaintiffs’ exclusive rights in the Asia Cricket Cup matches and associated content. Disclosure orders were also passed against the Domain Name Registrars (hereinafter “DNRs”) to disclose the details of the impugned domain names. MeitY and DoT were also directed to block the impugned domain names. The relevant extract of the said order dated 22nd August, 2022 reads as under:
3. Today, Mr. Sidharth Chopra, ld. Counsel appearing for the Plaintiffs, submits that five of the DNRs have not complied with the orders of this Court. The said DNRs are: i. NameCheap Inc./Defendant No.13; ii. Dynadot, LLC/Defendant No.14; iii. Tucows Inc./Defendant No.16; iv. Gransy s.r.o./Defendant No.17; and v. Sarek Oy/Defendant No.18.
4. In this regard, ld. Counsel for the Plaintiffs has placed on record NameCheap Inc.’s reply to the Plaintiffs’ email seeking compliance of the order dated 22nd August, 2022. The said email reads as under: “Hello, Thank you for your email. In such situations, it is advised to appeal to a court of competent jurisdiction. In order for us, as a U.S.- based company, to take the actions you are requesting, we require a U.S. state or federal court order or subpoena. If a U.S. court order is received, we will abide by any decision stated therein. If you already have a U.S. court order, please forward it, along with your request and contact information, to our Senior Legal department directly via legal@namecheap.com. You can find more information about the corresponding policy at https://www.namecheap.com/legal/general/courtorder-and-subpoena-policy.aspx, or you may wish to obtain local legal advice about any available mutual legal assistance treaties. Let us know if there are any further questions. Regards, Legal & Abuse Department Namecheap Inc.”
5. Mr. Chopra, ld. Counsel, thus submits that the DNRs are not complying with various injunction orders passed by this Court, thereby rendering the injunction orders ineffective.
6. This Court has perused the said correspondence with the DNRs. In terms of the orders passed by this Court in a batch of matters with the lead matter being CS (COMM) 135/2022 titled Dabur India Ltd. v. Ashok Kumar & Ors., on 3rd August, 2022 and 13th /14th September, 2022, this Court reiterates its prima facie view that all DNRs have to abide by and give effect to orders passed by competent courts, government authorities, etc. Moreover, all these DNRs mentioned above and in respect of which directions have been passed by the Court, are offering their services and products in India and are bound by the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter “2021 Rules”). Under the said Rules, they are also obligated to appoint Grievance Officers to ensure compliance of the orders passed by this Court, which they clearly appear not to have complied with.
7. This Court has previously taken note of Internet Corporation for Assigned Names and Numbers’ (hereinafter “ICANN”) agreement governing the relationship between registry operators, DNRs, and the domain name registry. These agreements also impose obligations upon DNRs to comply with all applicable laws, Court orders, etc. The relevant extract of the order dated 3rd August, 2022 in CS(COMM) 135/2022, reads as under:
(iv) Clause 3.[5] read with 3.10 of the RRA provides that the DNR shall provide complete data as required by the Registry and shall abide by ICANN standards, policies and practices for which the Registry Operator has responsibility in accordance with the Registry Agreement (hereinafter “RA”).
(v) At the Registry level, Clause 2.[6] read with
Specification 5 of the RA provides a schedule of reserved names which cannot be registered within TLDs, without express permission of ICANN. It provides that DNRs also have an obligation to curb illegal activity and not act in any manner which could result in damage to third parties including brand names and trademark owners.
(vi) Clause 2.[8] read with Specification 7 of the RA provides that legal rights of third parties shall be protected and the Registry Operator shall take reasonable steps to investigate and respond to any reports from law enforcement and governmental agencies for illegal conduct. Relevantly, the said clause provides as under: “2.[8] Protection of Legal Rights of Third Parties. Registry Operator must specify, and comply with, the processes and procedures for launch of the TLD and initial registrationrelated and ongoing protection of the legal rights of third parties as set forth Specification 7 attached hereto (“Specification 7”). Registry Operator may, at its election, implement additional protections of the legal rights of third parties. Any changes or modifications to the process and procedures required by Specification 7 following the Effective Date must be approved in advance by ICANN in writing. Registry Operator must comply with all remedies imposed by ICANN pursuant to Section 2 of Specification 7, subject to Registry Operator’s right to challenge such remedies as set forth in the applicable procedure described therein. Registry Operator shall take reasonable steps to investigate and respond to any reports from law enforcement and governmental and quasi-governmental agencies of illegal conduct in connection with the use of the TLD. In responding to such reports, Registry Operator will not be required to take any action in contravention of applicable law.”
30. The ICANN agreements do not seem to obligate DNRs to extend privacy protect features, even in cases of blatant infringement and fraudulent activities. Moreover, all Registries and DNRs, as per the Agreements, prima facie, have to abide by and give effect to orders passed by competent courts, governmental authorities etc. However, Mr. Rao, ld. Sr. Counsel for ICANN, and the ld. Counsels for the DNRs, have been asked to seek further instructions to make more comprehensive submissions in this regard on the next date. ”
8. Thereafter, on the issue of appointment of grievance officers, the relevant extract of the order dated 13th September, 2022 in CS(COMM) 135/2022, reads as under:
12. The DNRs do not dispute that they are ‘intermediaries’ under the IT Act, 2000. This Court has also noticed that in a large number of domain name matters, even when advance service is done at the email addresses of the DNRs available online, the DNRs are not always represented on the first date of hearing before the Court. In such matters, there is always a need for urgent implementation of orders, in as much as domain names have been registered fraudulently, and large sums of money have been collected by the fraudulent registrants from vulnerable citizens and there is a need for urgent freezing of bank accounts and obtaining details of the persons operating these illegal bank accounts.
13. In view of this situation, a query has been posed to all the DNRs represented before the Court today, as to whether they have appointed Grievance Officers in terms of the aforementioned IT Rules 2021, and if so, whether such details of the officers are published on their websites. In response, ld. Senior Counsels on behalf of various DNRs, submit that they wish to seek instructions in this regard, and revert by tomorrow.
14. Accordingly, the DNRs who are represented before the Court today, shall revert by tomorrow on the following aspects: (1) Whether they have appointed Grievance Officers in terms of IT Rules 2021? (2) If they have done so, details of the said Grievance Officers including the name, designation, postal address, e-mail address and telephone numbers.”
9. Vide further order dated 14th September, 2022, after recording the details of grievance officers of the DNRs present in Court, in respect of absent DNRs, including Namecheap Inc., Dynadot LLC, and Tucows Inc., this Court directed as under:
10. Mr. Kurup, ld. CGSC appearing for MeitY and DoT, submits that as and when the Plaintiffs have notified the departments about various infringing websites, which are involved in illegal streaming of the Plaintiffs’ contents, proper blocking orders have been issued. If the Court has passed suspension and disclosure orders, the DNRs ought to have taken action in accordance with law. He however submits that through VPN networks, these DNRs may still be accessible, thus allowing streaming/hosting/etc. of infringing content to continue.
11. In the backdrop of the above discussion, insofar as the above listed DNRs, which are not giving effect to the orders of this Court, i.e., NameCheap Inc./Defendant No.13, Dynadot, LLC/Defendant No.14, Tucows Inc./Defendant No.16, Gransy s.r.o./Defendant No.17, and Sarek Oy/Defendant No.18, since DoT and MeitY are present before this Court, they are directed to immediately take action within one week against these DNRs for non-compliance of the orders passed by this Court. The authorities shall also look into the question as to whether these DNRs ought to be permitted to continue to offer their goods and services in India, if they are not giving effect to orders of Indian Courts and not complying with the applicable laws under the Information Technology Act, 2000, and the 2021 Rules.
12. Mr. Kurup, ld. CGSC, to file a status report as to action taken in this regard by DoT and MeitY, in respect of these DNRs, by the next date of hearing.
13. List on 11th January, 2023.
14. Copy of the order be given dasti to both the parties.
PRATHIBA M. SINGH JUDGE NOVEMBER 9, 2022/dk/ms