By: Aishwarya Sinha
Article 19(1)(a) of the constitution of India lays down freedom of speech and expression. Article 19(2) also provides some restrictions on freedom of speech and expression. Thus freedom of speech and expression provided in the Indian constitution is not an absolute right.
Freedom of expression on the internet: Internet speech has the potential for greater impact than speech through normal media. Thus internet speech can facilitate or incite action much more effectively than traditional media. With information, disinformation on social media is also widespread. The newspaper is rational to retain loyal readership but the unauthorised circulation of anything would end up to digital piracy.
Legal action can be taken for allowing circulation of portable document format (PDF) versions of the newspapers on social media warned by The Indian Newspaper Society (INS).[i]
Holding social-media group administrators liable for such forwards is not possible, given that they have no control over the content posted by group members. The Supreme Court in the R Kalyani vs Janak C Mehta (2008) case, clearly laid down that the group administrators are not liable.
Social media platforms themselves are defined as intermediaries in the context of the Information Technology Act 2008 (IT Act), and their roles and liabilities are limited to being the same. According to the Section 79 of the IT Act, 2000 and the rules notified in April 2011 for these intermediaries, their liability will not arise if they were not responsible for the inception, transmission and reception of content through their networks. Nevertheless, if a publication house or law enforcement approaches the intermediary to remove the PDF content of these newspapers than they would be bound to do so.
Free Pdf can be shared whereas Pdf with a membership fee can’t be shared –
With the advancement in technology and COVID-19 situation, the newspaper community are at risk that the readers will shift on online media rather than their printing newspapers. There is no copyright protection over the news but it does provide protection to the original expression of such news or facts. The newspaper works which once are in the public domain do not attract any copyright protection.
However, an e-newspaper is a subscription-based service. Thus, it is entirely not a part of the public domain. Several other players in the media industry such as Times of India, The Hindu and The Indian Express etc. provide e-paper on a subscription basis. But the unauthorised dissemination of their content will attract liability. As per Shailesh Gupta, President of Indian Newspaper Society (INS), the circulation of PDFs of subscription-based e-papers without taking authorisation does not only result in digital piracy and financial loss but also spites aggregators to misuse such information.[ii]
Sharing Pdf may or may not be an offence-
Sharing Pdf copies of the newspaper is illegal if the newspaper community charges a membership fee. However, sharing the newspaper Pdf of these newspaper will not be illegal if done for non- commercial purpose. Thus, sharing Pdf of the newspaper may or may not be an offence depending upon various circumstances.
The individual who circulates online such PDFs or a part of it that is not sent to them by the media house is liable to have committed breaches under Sections 43B and 66 of the Information Technology Act, 2000 and a civil case may be made out where compensation can be claimed by the concerned media house.
Jagran Prakashan Limited vs. Telegram FZ LLC & Ors.[iii]
The Delhi High Court vide its order dated May 29, 2020, granted an ad-interim injunction in favour of the Dainik Jagran (Plaintiff) and against the Telegram (Defendant No. 1) for infringing the rights of the Plaintiff. Dainik Jagran, has inter alia submitted the following facts before the Court:
Telegram allows access and permission to the user of the application to create various channels without disclosing their identity. Due to lack of identity, the administrator(s) of the Telegram Channels have been implied as John Doe/Ashok Kumar. These unidentified administrators have created Telegram Channels with ID’s –
t.me/dainkjagran, t.me/dainikjagranhindi, t.me/dainikjagran_jnm, t.me/dainikjagranpdf, t.me/dainik_jagran, t.me/dainikjagran, t.me/DJagran, t.me/Dainik_Jagran_pdf, t.me/Fainik_Jagran_News, t.me/dainikja.
On these Telegram Channels, the e-newspapers of the plaintiff were being uploaded in the .pdf format. These Telegram channels are not only making all the current newspapers available but also users subscribing to the Telegram Channels can download e-newspapers published in the past which otherwise could only be viewed by the subscribers of the website of the Dainik Jagran. It has been alleged that Telegram including the unidentified administrators was not only causing some serious financial loss to Dainik Jagran but also violating its trademark rights as well as copyrights in the e-newspaper. Dainik Jagran also relied upon the provisions of Section 79 of the Information Technology Act, 2000 and stated that Telegram cannot escape from its liability, on the ground that it is an intermediary, as Telegram is required to conduct due diligence and in terms of Rule 3 (4) of the Information Technology (Intermediaries Guidelines) Rules, 2011 on being informed about the misuse, which Telegram failed to do.
Hon’ble Justice Mukta Gupta concurred with the counsel of the Plaintiff and held that the balance of convenience lied in favour of the Plaintiff. In lieu of the same, the following directives were issued by the Court–
- An ad-interim injunction as per Order 39 Rule 1 & 2 of the Code of Civil Procedure, 1908 issued in favour of the Plaintiff and
- Defendant No.1 (Telegram) is directed to disclose the basic subscriber information/identity of the users/owners of the aforementioned channels and blocking the same within 48 hours.
Curbing circulation of news is one of the pivotal challenges for any governmental entity or even media industry as it dangerously circumvents one’s right to speech and expression. Therefore, there is no bar on the circulation of PDFs of e-papers which have been provided by media houses at free of cost. However, unauthorised circulation is taking up a form of digital piracy, threatening the inherent rights of its original works of newspapers. In the digital era, the newspapers do not have to protect their pecuniary interests only but also its intangible rights.
[iii] (2020) SCC OnLine Del 615