Delhi High Court reiterates that an online intermediary has to act on a complaint against an infringing content

Delhi High Court reiterates that an online intermediary has to act on a complaint against an infringing content

The Delhi High Court, in the case of Facebook Inc. v. Surinder Malik & Ors. has reiterated the obligations of online intermediaries in taking down content that infringes on third party intellectual property rights.

The case was first filed before the trial court, where Surinder Malik, the owner of the trademark ‘DA MILANO’ had filed a suit for trademark infringement against various third parties who had put up content on Facebook and Instagram that infringed on Surinder Malik’s trademark ‘DA MILANO’. In the suit for trademark infringement, Surinder Malik had also impleaded Facebook and Instagram to ensure that the posts containing the infringing marks are also taken down and had also sought the personal appearance of the both, Facebook and Instagram.

Facebook and Instagram approached the Delhi High Court contesting the requirement of personal appearance on the ground that they are only intermediaries and are not contesting Surinder Malik’s ownership of the trademark ‘DA MILANO’. They further argued that they are willing to comply with any the order requiring them to take down the infringing content, thus, their personal appearance was not warranted.  

The Delhi High Court observed that as far as posts put up by third parties are concerned, Facebook and Instagram are intermediaries and their role is governed by Section 79 of the Information Technology Act, 2000 (“Act”) and the Information Technology (Intermediaries Guidelines) Rules, 2011 (“Rules”).

Relying on the judgment of the Supreme Court in the case of Shreya Singhal v. Union of India (“Shreya Singhal Case”), the Delhi High Court held that intermediaries have a duty to take down posts which are brought to their notice under Section 79 (3) of the Act. In the Shreya Singhal Case, the Supreme Court held that any information received by the intermediaries in terms of Section 79 (3) of the Act, have to be by means of a Court order.

Consequently, the Delhi High Court directed Facebook and Instagram to taken down all the infringing content going forward that are brought to their notice by Surinder Malik.

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The Shreya Singhal Case had specified that information that is received by the intermediaries to take down an infringing content has to be by means of a Court order. This requirement was laid keeping in mind the fact that intermediaries would receive multiple take down requests and it would be extremely difficult for the intermediaries to separate the legitimate requests from the frivolous ones. Thus, the Delhi High Court has correctly reiterated the position of law that any information to take down an infringing content has to be by means of a Court order.

Disclaimer: This post has been prepared for informational purposes only. The information/or observations contained in this post does not constitute legal advice and should not be acted upon in any specific situation without seeking proper legal advice from a practicing attorney.

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