Guest Post: Airtel pays penalty for indiscriminate blocking – ISPs stuck between a rock and a hard place?

Adithya Reddy, a practising advocate before the Madras High Court, has sent us this excellent post on the various issues that arise out of the decision of a court to impose a penalty on Airtel for blocking access to file-sharing websites as a result of the ‘John Doe’ order granted by the Madras High Court to the producers of the film ‘3’. This post is a must read for all those of you who are interested in the taking the ‘intermediary liability’ debate a step forward. 

Airtel pays penalty for indiscriminate blocking – ISPs stuck between a rock and a hard place?

Adithya Reddy
Are ISPs the ‘Monkey in the middle’ of the battle between
the consumer and the copyright owner?
Image from here
It is not surprising that a Karnataka Consumer Forum has reportedly penalised Airtel for being overzealous in implementing the Madras High Court’s John Doe order in the case involving movie ‘3’. The order has been discussed in this blog here. With no clarity on the conditions for intermediary liability under the special law i.e. the IT Act, it was only a matter of time before judicial forums under other branches of law stepped into to address the lacuna. The newspaper report refers to RTI responses that suggest that Copyright Labs, the representative of the Plaintiff which secured the John Doe order, might have asked ISPs for indiscriminate blocking of whole websites which is well beyond the mandate of the High Court order. Assuming this to be true, what should an ISP do when faced with a potentially impermissible takedown request? Would it automatically be disqualified from the ‘safe harbour’ under Section 79 for not taking down or blocking because the request amounts to knowledge? Or should it be expected to exercise independent judgment in determining the scope of judicial orders or the veracity of infringement claims? 
In my view liability for impressible or indiscriminate takedowns/ blockings should rest entirely on the person making such a request to the ISP. This is where the Intermediary Guidelines, 2011 could have played a vital role. Unfortunately, the guidelines are too scarce and skeletal to serve any purpose. The guidelines as well the general legal position in India on intermediary liability in India have been criticised over here and here
The rules make it mandatory for ISPs to “disable information” (information that contravenes the provisions under rule 3(2)) within 36 hours of being given “actual knowledge” by an “affected person” (it may be noted that none of these terms have been defined). This leaves no scope for the ISP to exercise any independent discretion in the decision to takedown material or block sites, even if it means exposing itself to the risk of facing penalties under Consumer Protection or other Civil laws. It is absolutely incredible that the rules don’t make any mention of the liability of an “affected person” who misrepresents and misleads the ISP to act highhandedly against legitimate web content. 
The Digital Millennium Copyright Act offers a more detailed, if not perfect, model for guidelines on the issue. The provisions are summarised by the US Copyright Office:- 

Under the notice and takedown procedure (Section 512 (c)(3)), a copyright owner submits a notification under penalty of perjury, including a list of specified elements, to the service provider’s designated agent. Failure to comply substantially with the statutory requirements means that the notification will not be considered in determining the requisite level of knowledge by the service provider… In addition, the provider is protected from any liability to any person for claims based on its having taken down the material. (Section 512(g)(1)).

In order to protect against the possibility of erroneous or fraudulent notifications, certain safeguards are built into section 512. Subsection (g)(1) gives the subscriber the opportunity to respond to the notice and takedown by filing a counter notification. In order to qualify for the protection against liability for taking down material, the service provider must promptly notify the subscriber that it has removed or disabled access to the material. If the subscriber serves a counter notification complying with statutory requirements, including a statement under penalty of perjury that the material was removed or disabled through mistake or misidentification, then unless the copyright owner files an action seeking a court order against the subscriber, the service provider must put the material back up within 10-14 business days after receiving the counter notification. Penalties are provided for knowing material misrepresentations in either a notice or a counter notice. Any person who knowingly materially misrepresents that material is infringing, or that it was removed or blocked through mistake or misidentification, is liable for any resulting damages (including costs and attorneys’ fees) incurred by the alleged infringer, the copyright owner or its licensee, or the service provider. (Section 512(f)).” (Emphasis supplied)

Therefore, the risk is entirely that of the subscribers or copyright owners who deny or assert the rights over the material. However, even these provisions have been far from perfect in their working. Recently, youtube took down an ad produced by the Mitt Romney Campaign against Obama on the basis of a copyright claim from BMG Rights Management. Having found that the ad was a case of fair-use, youtube replaced the ad in 10 days which is the time-limit under the DMCA. As pointed out here-, 10 days could be too long in case of political ads “when news cycle is measured in hours”. 
Also, to prove bad-faith or “knowing material misrepresentation” on the part of the alleged copyright owner in influencing the ISP’s decision is not easy. In Stephanie Lenz Vs. Universal Music Group, a US District Court made it mandatory for a copyright owner to consider fair-use before giving takedown requests to the ISP. In this case the Plaintiff posted on youtube a clip of her children dancing to Prince’s “Let’s Go Crazy.” Universal, the copyright holder for “Let’s Go Crazy”, sent youtube a takedown notice. Lenz sued Universal for misrepresentation under the DMCA. Though the Court did not conclude that Universal acted in bad-faith, it made it clear that a copyright owner cannot claim immunity for causing unnecessary removal of non-infringing material:- 
“The purpose of Section 512(f) is to prevent the abuse of takedown notices. If copyright owners are immune from liability by virtue of ownership alone, then to a large extent Section 512(f) is superfluous. As Lenz points out, the unnecessary removal of non-infringing material causes significant injury to the public where time-sensitive or controversial subjects are involved and the counter-notification remedy does not sufficiently address these harms. A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute. Requiring owners to consider fair use will help “ensure that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will expand” without compromising “the movies, music, software and literary works that are the fruit of American creative genius.” 
Therefore, if Indian law had provisions similar to DMCA not only would Airtel have been granted statutory immunity from any claim arising out of its decision to block the sites, but if proven guilty of misrepresentation Copyright Labs would alone be liable for the all the damages caused by the actions of the various ISPs. Also, if the newspaper reports are true and if Copyright Labs has indeed misrepresented the scope of the Madras High Court order, Airtel would well be entitled to recover the penalty incurred by it from Copyright Labs through appropriate civil proceedings.

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

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