TaxTMI 
TaxTMI 
2022 (7) TMI 1611
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....plication stands disposed of. I.A.14296/2021 (by the plaintiff u/S 12A of the Commercial Courts Act, 2015 seeking exemption from pre-institution mediation) 4. The application has been moved by the plaintiff along with the suit seeking exemption from exhausting the remedy of pre-institution mediation. 5. Mr. Saurabh Kirpal, learned senior counsel for the defendants No. 1 to 9, had raised an objection that the suit is not a 'commercial suit'. If that be so, the application would be unnecessary. However, since the suit has been filed as a 'commercial suit' and in view of the fact that the urgent reliefs of injunction against infringement of copyright has been sought, the application is allowed and the plaintiff is exempted from exhausting the remedy of the pre-institution mediation. 6. The application stands disposed of. I.A.14964/2021 (by the plaintiff u/O VII Rule 10 CPC to file additional documents) and I.A.37/2022 (by the plaintiff u/O VII Rule 14 read with Section 151 CPC seeking permission to file additional documents) 7. These applications have been filed by the plaintiff seeking permission to place on the record, the transcripts of the videos,....
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....elevision' and 'Good News TV' and is part of the prestigious 'INDIA TODAY GROUP'. Its business interests are in broadcasting, publishing, e-commerce, etc., through its constituent companies, like Living Media India Limited. The India Today Group claims to have created an enviable legacy of trust and leadership since it was established in 1975. 15. The plaintiff also claims to have created and maintained highly credible and accurate, active and updated profiles, accounts and handles on social-media and content-sharing platforms, such as, Facebook, Twitter, YouTube and Instagram. It is claimed that there are 14.7 million followers on plaintiff's Twitter handle '@aajtak' and about 5.8 million followers on the Twitter handle '@indiatoday'. The YouTube channel under the name 'AajTak' created in August, 2009 has close to 47.9 million subscribers and over 15,834,300,322 views as on date. The YouTube channel under the name 'India Today' has around 5.09 million subscribers and has over 1,207,603,938 views as on date. The YouTube channel 'AajTak HD' created in November, 2018 also has over 4.11 million subscribers and has over....
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....News Anchors of the plaintiff company were people with recognition, and with great talent, which has been acknowledged by the various awards that Ms. Kalli Purie, the Vice-Chairman and Group Editorial Director (Broadcast and News Media), Mr.Rahul Kanwal, News Director, Mr.Gaurav C. Sawant (Senior Executive Editor, India Today Television), Ms.Anjana Om Kashyap (Editor, Special Projects and Executive Editor, AajTak) and Ms. Shweta Singh (Senior Executive Editor, Special Programming) had all received over a period of time for their excellent news coverage, reporting, creative programming, anchoring, etc .. 20. It is in this background that the plaintiff has filed this suit submitting that the defendants No. 1 to 9 have, by their various programmes on their social-media platforms and through their Digital News Platform, namely, "Newslaundry", from its website, having domain name www.newslaundry.com, had tarnished its reputation. It was also submitted that this tarnishing is accompanied with the infringement of the copyrighted content of the plaintiff. According to the plaintiff, the defendants have ridiculed and defamed the plaintiff company, its news channels, its employees and Man....
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....t is submitted that the plaintiff has made misrepresentation to this court and therefore, cannot be entitled to any discretionary relief. 22. In reply filed to the interim application, the defendant No.12/Twitter Inc. has submitted that since it qualifies as an "intermediary" within the meaning of Section 2(1)(w) of the Information Technology Act, it is exempted from any liability in relation to any third- party information or data made available or hosted by it. It is submitted that the dispute at hand is essentially between the plaintiff and the entities/persons against and by whom the defamation/infringement is alleged, and in the light of the judgment of the Supreme Court in Shreya Singhal v. Union of India AIR 2015 SC 1523, any relief of prospective injunction vis-à-vis unidentified future content cannot be sought against an intermediary. 23. No replies to the interim application have been filed on behalf of the remaining defendants i.e., defendant No.10/Google LLC and defendant No.11/Facebook Inc. ARGUMENTS URT 24. Mr. Hrishikesh Baruah, learned counsel for the plaintiff, submitted that the defendants No.1 to 9 had utilized the content created by the plaint....
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....l disparagement", particularly, the description of the programme as a "shit programme", the capacity of an anchor to create a riot, to derisively comment on a new channel called 'Good News Today', which has intended only to disseminate positive news, since in usual course, these do not get reported. Also, an attempt has been made to disparage the revenue model of the plaintiff by proclaiming that they were an 'ad-free' news channel. It was submitted that if the content had some problem, a complaint redressal structure under the Cable Television Networks (Amendment) Rules, 2021 was available where the defendants No.1 to 9 could have filed a complaint, but they had no right or authority to take on the mantle of a Regulator. It was submitted that the provision of Section 52 of the Copyright Act, 1957 was not available to the defendants No.1 to 9 as, firstly, the broadcasting on social-media was not included in Section 52 and even if it was, the programmes of the defendants No.1 to 9 did not reflect "fair comment" and amounted to 'commercial disparagement', which also ought to be straightaway injuncted. 27. Reliance has been placed by the learned counsel o....
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....suit continue before the commercial courts and not otherwise. In the present case, as there was no issue relating to immovable property and what is alleged is only defamation for which damages could be awarded, the plaint must be returned for proper filing. 30. On the question of grant of interim relief, it was submitted by the learned senior counsel that though it was not disputed that the reference to the content of the plaintiff was there in the programmes of the defendants No.1 to 9, however, it was covered by the provisions of Section 52 of the Copyright Act, being "fair dealing". In this context, it was submitted that the judgment of the learned Single Judge in Super Cassettes Industries Limited v. Chintamani Rao, 2011 SCC OnLine Del 4712, relied upon by the plaintiff, was inapplicable not only because it was overruled by the Division Bench of this court, but also because of the amendment to Section 52. It was submitted that the judgment rendered by the learned Single Judge was when "fair dealing" with "literary", "dramatic", "musical" or "artistic" work would not constitute infringement in certain situations, but after 2012, this protection was available to "fair dealing"....
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....mmes, whereas the defendants No.1 to 9 operated only on social- media platforms. Further, there was nothing in the videos that would show "disparagement", as whatever was being said was to indicate that the plaintiff's channels had a bias, including of hesitancy to criticize the Government, and that all that the defendants No.1 to 9 were doing was to show them the mirror. It was further submitted that when the aim of the defendants No.1 to 9 was only to critique and point out the flaws in the reporting on the plaintiff's channels, there could be no evident malice. Moreover, the defendants No.1 to 9 must be given an opportunity to establish this defence during trial, that the comments were based on truth. 34. It was further submitted by the learned senior counsel that the right of the defendants No.1 to 9 to create such programmes was based on their Fundamental Right to free speech and the same could not be curtailed even without any specifics being pleaded in the plaint as to in which way, 'commercial disparagement' had occurred. It was urged by the learned senior counsel that when the balance was to be sought between the 'pecuniary loss', if at all that ....
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.... Tata Sons Limited v. Greenpeace International, 2011 SCC OnLine Del 466andPushp Sharma v. D.B. Corp. Ltd., 2018 SCC OnLine Del 11537 were relied on. Reliance has also been placed on the decisions in Mittal Electronics v. Sujata Home Appliances (P.) Ltd., 2021 SCC OnLine Del 1401;Indibily Creative Private Limited Vs. Government of West Bengal and Others(2020) 12 SCC 436; L. Usha Rani v. State of Kerala, 2013 SCC OnLine Ker 22118; Shreya Singhal v. Union of India AIR 2015 SC 1523; M/s Seemax Construction (P) Ltd. Vs. State Bank of India & Anr. AIR (1992) Delhi 197; Distillers Co. (Biochemicals) Ltd. Vs. Times Newspapers Ltd. (1974) 3 W.L.R. 728; Indian Express Newspaper (Bombay) Pvt. Ltd. Vs. Union of India (1985) 1 SCC 641; Subramanian Swamy (supra); Surya Prakash Khatri Vs. Madhu Trehan(2001) 92 DLT 665; Khushwant Singh (supra); Campbell, Aka Skywalker Vs. Accuffrose Music, Inc. 510 U.S. 569 (1994); Beloff Vs. Pressdram Ltd.(1973) RPC 765 and Hubbard Vs. Vosper (1972) 2 W.L.R. 689. 37. In rejoinder, learned counsel for the plaintiff submitted that the suit could be tried as a 'commercial suit' despite inclusion of reliefs of 'infringement of copyright' and 'c....
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....have perused the record and considered the cited judgments and the written submissions filed on behalf of the plaintiff and the defendants No.1 to 9. Whether the suit relates to a 'commercial dispute' 41. According to Mr. Saurabh Kirpal, learned senior counsel for the defendants No.1 to 9, the instant suit could not be considered a 'commercial suit' since it was not covered under any of the clauses of Section 2(1)(c) of the Act, considering that relief not only pertaining to copyright violations had been claimed, but a relief qua defamation was also claimed. It was urged that the Explanation limited the expansion of the definition of a commercial dispute only in respect of an immovable property and therefore, the present suit is not maintainable as a 'commercial suit' and had to be heard by a regular civil court. 42. Per contra, the contention of the learned counsel for the plaintiff was that all disputes "arising out of" the various clauses of Section 2(1)(c) would also be covered as a 'commercial dispute'. Section 2(1)(c) may be reproduced for ready reference: - "2. Definitions (1) In this Act, unless the context otherwis....
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....te are to be read and understood in their ordinary meaning. Section 2(1)(c) does comprise of a list. But, it would be incorrect to hold that it sets out an exhaustive list of disputes that qualify as commercial disputes. If that was the intent, the words used would simply have been - "the following are commercial disputes". Instead, the words used are "arising out of". That is, the source of the dispute must be one of the clauses listed in Section 2(1)(c) of the Act. The clauses do not limit the contours of the dispute that may arise. What would be the actual dispute in respect of ordinary transactions of merchants, or export and import of merchandise, or carriage of goods, or construction and infrastructure, and so on and so forth, would remain what would arise in ordinary course between two parties in the course of these engagements and activities. Thus, such a dispute could be a breach of contract or the enforcement of terms of contract entailing recovery not only of the price, but possibly damages; disputes may relate to mutual rights or obligations under Joint Venture Agreements or rights and obligations in respect of Consultancy Agreements; disputes arising out of technology ....
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.... in the present in actual use exclusively in trade or commerce, the very purpose would be defeated. The observations may be reproduced fruitfully as under :- "14. In that view it is also necessary to carefully examine and entertain only disputes which actually answers the definition "commercial disputes" as provided under the Act. In the instant case, as already taken note neither the agreement between the parties refers to the nature of the immovable property being exclusively used for trade or commerce as on the date of the agreement nor is there any pleading to that effect in the plaint. Further the very relief sought in the suit is for execution of the mortgage deed which is in the nature of specific performance of the terms of Memorandum of Understanding without reference to nature of the use of the immovable property in trade or commerce as on the date of the suit. Therefore, if all these aspects are kept in view, we are of the opinion that in the present facts the High Court was justified in its conclusion arrived through the order dated 1-3-2019 [K.S. Infraspace LLP v. Ambalal Sarabhai Enterprises Ltd., 2019 SCC OnLine Guj 1926] impugned herein. The Commercial Cour....
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....aintiff submitted that a Co-ordinate Bench of this Court in Jasper Infotech (supra) while dealing with a suit seeking permanent and mandatory injunction restraining disparagement, defamation, passing off, treated that suit to be a 'commercial dispute'. Since a case for protection against commercial disparagement has been pleaded in the instant plaint, a different yardstick need not be adopted here. 51. It is clear that relief in respect of copyright violations can be sought only before the commercial court in view of the clause (xvii) of Section 2(1)(c) of the Commercial Courts Act. If the other reliefs claimed by the plaintiff "arise" out of such intellectual property rights, clearly the commercial court would have the jurisdiction to try the suit. "Arising out of", on a plain reading, would cover situations such as in the present case, where the reliefs are so closely intertwined, where disparagement is alleged by the very use and portrayal of the copyrighted content of the plaintiff by the defendants No.1 to 9. 52. Thus, it is concluded that the dispute at hand is a 'commercial dispute' and the commercial court has jurisdiction to try the suit. COPYRIGHT....
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.... or a performer's right subsists under the provisions of this Act, the sound recording or a cinematographic film of such programme or performance; if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act." (emphasis added) 57. Broadcast reproduction right, though limited for 25 years under Section 37(2), prohibits the re-broadcast or reproduction of such programmes without licence under Section 37(3) during the subsistence of these special rights called broadcast reproduction rights. However, Section 39 exempts certain acts as not infringing the broadcast reproduction rights. In view of the language used, it would be akin to Section 52, which also provides that certain acts would not be infringement of copyright. Both sections prescribe that use which amounts to "fair dealing" would not amount to infringement of either broadcast reproduction rights or copyright. 58. It may be useful to reproduce these provisions at this juncture, as below: "Section 39. Acts not infringing broadcast reproduction right or performer's right .- No broadcast reproduction right or performer's right shall be d....
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....ates a programme for "communication to the public" would be the original creator and would be entitled to the same protection against unauthorized reproduction as in respect of a "literary", "dramatic", "musical" or "artistic" work. The original creator being the first broadcaster would be vested with the reproduction rights and no one else can reproduce it without licence. The exception would be Section 39 read with Section 52 of the Act. Undoubtedly, the decisions of the courts in respect of "literary", "dramatic", "musical" or "artistic" work, 'cinematographic film' or 'sound recording', particularly, to determine the question of infringement of rights and defence of "fair dealing", may be looked into profitably, even while considering "broadcasting rights" and "fair dealing" under Section 39. 61. A T.V. news programme would, of necessity, relate to current events and current affairs. Criticism or review of such programmes would be both on content and the reporting of such current events and current affairs. Reporting would, obviously, entail the coverage of current events and current affairs in a particular manner and style, in keeping with the philosophy of ....
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.... would have to be founded on an absence of dishonest motives and bad faith. The questions that the court would have to consider would be whether the comment was actuated by malice, or was an honest and genuine opinion of the one expressing it and was in public interest. 65. The view taken was that even if the words conveyed derogatory imputations or the information was exaggerated or prejudiced or very badly expressed, allowing the people (here the viewers/users) to read all sorts of innuendos into the badly expressed opinion, nevertheless, the defence of "fair comment" would be a good defence. A caution may be flagged here, that reputation cannot be thereby harmed, as discussed later. 66. In Hubbard (supra), the question related to copyright and the question of "fair comment" in respect of alleged copyright infringement. Lord Denning MR observed as below :- "It is impossible to define what is "fair dealing." It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism o....
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....ch criticism by itself will not result in forfeiture of the defence of fair dealing. Malicious and unjustified criticism may give to the aggrieved party a cause for instituting an action for defamation but it would certainly not confer a right founded in copyright. (v) In ascertaining as to what would constitute reportage of "current events" or would fall within the ambit of "criticism" or "review", Courts ought to adopt a liberal approach; (vi) In discerning as to whether a person has made fair use of copyrighted work, the standard employed ought to be that of a "fair minded" and "honest person". In the case of musical works the test would be that of a "lay hearer" (vii) While examining the defence of fair dealing, the length and the extent of the copyrighted work which is made use of, as indicated in clause 3 above, is important, however, it cannot be reduced just a quantitative test without having regard to the qualitative aspect. In other words, enquiry ought to be made as to whether the impugned extract forms an essential part of the work of the person in whom inheres the copyright. This may be particularly true in the case of musical works where a f....
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....fore I proceed to deal with the case law cited by the parties and examine the position on facts, I think it appropriate to make a few preliminary observations according to my understanding of the statutory position on a plain reading of Section 52 of the Act. What Section 52(1)(a) permits is that the literary, dramatic, musical or artistic work may be reproduced without fear of infringement of copyright in such works, if such reproduction is a fair dealing of the copyright work in question, for the purpose of criticism or review whether of that work or any other work. Therefore, firstly it has to be "fair dealing" of the work in question. This means that the dealing with the copyrighted work is not an unfair dealing. Only that part of the literary, dramatic, musical or artistic work may be utilized for the purpose of criticism or review, which is absolutely necessary, and no more. The purpose - ostensibly or obliquely, should not be to ride piggy back on the work of another. The focus of attention, and interest of the producer/author of the work and the viewer/listener should not be the work of another, but the work created by the person who may, bona fide be using the work of anot....
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....n of the plaintiff that not only are the defendants infringing the copyright of the plaintiff, but were portraying the content in such a manner, with comments, that amounted to commercial disparagement. Reputation, to put simply, is life itself. The high test laid down in Bonnard v. Perryman, [1891] 2 Ch. 269 before an injunction could be granted restraining publication affecting reputation, has since been eased in England in Taveta Investments Limited Vs. The Financial Reporting Council, [2018] EWHC 1662 (Admin). In India too, it has been held that right to reputation is sacrosanct. In Subramanium Swamy (supra), the Supreme Court while dealing with the constitutional validity of Section 499 and Section 500 IPC has recognized 'reputation' as being an inherent component of Article 21 of the Constitution and that no one could be allowed to sully the reputation of another by claiming the right to freedom of speech and expression guaranteed under the Constitution of India. 71. There is no gainsaying that the plaintiff and the defendants No. 1 to 9 are competitors inasmuch as both are available to social-media users, apart from the fact that the plaintiff is also broadcasting....
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....and the message sought to be conveyed by the commercial. A fourth factor has been included by the Co-ordinate Bench of this court in Reckitt Benckiser India Private Limited v. Hindustan Unilever Limited, 2021 SCC OnLine Del 4896 viz., (iv) while glorifying its product, an advertiser may not denigrate or disparage a rival product. 27. While some latitude is to be given for hyperbole and commendatory expression for oneself with an attempt to show down the competitor, there can be no license to anyone to denigrate the competitor. The courts have protected parties who have been at the receiving end of such negative advertisements. 28. There can be no doubt that justification would require to be established by evidence. What would be the impact of a video being shown on social media and shared and viewed by people several times over, on a common and ordinary person who is an anxious parent wanting to send his/her child to enter the portals of reputed engineering colleges and looking for a coaching institute, may have to be considered. But the view taken by this court in Tata Sons Limited v. Greenpeace International (supra) is that wider viewership or a degree of perman....
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....e reproduced profitably, which are as follows: "9. Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated " ... is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the 'balance of convenience' lies." The interlocutory remedy is intended to prese....
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.... would be the loser. The old Bonnard Principle which set the high thresh-hold for grant of injunction restraining publications on the ground of defamation and harm to the reputation, has been watered-down by the courts, as noticed above. The right to free speech is an important right, but reputation is an equally important right. The courts, over a period of time, have pronounced that reputation is an internal and central facet of right to life, as protected under Article 21 of the Constitution. Thus, a balance would have to be struck between the two rights, one under Article 19(1)(a) and the other under Article 21 of the Constitution. 79. The defendants No. 1 to 9, in the present case, have however asserted another right and that is the unrestricted 'right to comment'. This right to comment on the content created by others is claimed by them as an exercise in public interest. It was the submission of the learned senior counsel for the defendants No.1 to 9 that since the media had unbridled power on account of the impact of its broadcast and reach, and since unlike the print media, there was no regulation of the T.V. channels and also the social-media, an unrestricted ri....
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.... multitude of reporting styles, prioritization and presentation of events that occur daily, would always be in public interest, since broadcast is intended to communicate to the public. Dissemination of a spectrum of information by many players would result in a better informed society. Different priorities would result in a range of information being readily available with regard to current events. Varied presentations and discussions would result in the availability of several shades of opinion before the public, which can then come to its own conclusion. It would definitely be in the interest of the public that every broadcaster has the right of fair comment on current events and of criticism and review, including of the programmes created by others. 83. However, once again, if the right is one to be protected under Article 19(1)(a), it will have to be subjected to reasonable restrictions under Article 19(2). The possible exceptions to this free expression of opinion, if one may venture in that direction, would obviously be those that threaten national security and law and order, which would need some monitoring of content or are ex facie false, defamatory, derogatory or disp....
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....ulture, have been greatly respected and there are several art forms in this country that allowed such criticism of even the Rulers in the heydays of Monarchy and which art forms still exist. Examples, that come to mind are "Ottamthullal" and the "Chakiyaarkoothu", both in Kerala. Sharp use of language conveys the message intended by the artists, but in a cultured and nuanced manner. Such creative genre must, without doubt, be encouraged and protected. Since the defendants No.1 to 9 claim their programme is satire, they need to explain which one of their programmes is "satire", what portion is "comment" and what justified "criticism". But whether the comment is satirical or malicious would have to be established as a fact and therefore, would require trial and a presumption either way cannot be drawn at this stage. 86. In this background, it would be necessary to determine whether the plaintiff has satisfied the three cardinal principles for grant of interim injunction. It may be mentioned that the interim injunction is sought at a time when the rival claims are yet to be determined for their merit. Additionally, in the case of defamation, it is also to be seen, what is the de....
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....and unbiased reporting, would be commercial disparagement, as advertisements on T.V. channels or even social-media cannot be a ground for rejecting a channel's view point or reporting. There is no gainsaying that advertisements plays a significant role in informing the public of availability of goods and services and the wide reach of the electronic media and T.V. channels as also the social-media, often lead manufacturers of goods and services to advertise on these platforms and thus, expand their own business. These statements call for justification by the defendants No.1 to 9. 89. On these facts, which have been noted, it cannot be denied that a "prima facie case" is disclosed. But disclosure of a prima facie case alone will not entitle a plaintiff to interim injunction. The other two requirements of "balance of convenience" and "irreparable loss and injury" will need to be established before such injunction can be granted. Since "justification" and "fair dealing" have been pleaded as defence, and such defence is based on facts, the defendants No. 1 to 9 have to be given an opportunity to prove justification during trial. Furthermore, the extent of infringement or fair us....
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....ty who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are: (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief. 17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion." (emphasis added) 91. The existence of a few videos with use of words listed in the written submissions of t....