Delhi High Court in its recent proceedings has ruled that the online intermediaries like Facebook and Instagram are liable to pull down infringing content as and when brought to their notice.
In a trademark infringement suit by the owner of the mark ‘Da Milano’ against online advertisements that were illegally using the Da Milano trademark, the trial court had sought the presence of Facebook and Instagram in the matter. This prompted the intermediaries to approach the Delhi High Court seeking exemption from personal appearance before the trial court.
The Delhi High Court reiterated that while online intermediaries may not perform an active role in the posting of infringing content, they would still be liable to pull down such content as and when it is brought to their notice.
The Court order reads:
“Considering the provisions of the IT Act and Information Technology (Intermediaries Guidelines) Rules, 2011, platforms such as Facebook and Instagram, which claim to be intermediaries not performing any active role in the posting of such information by third party alleged infringers, have a duty only to take down the posts which are brought to their notice by the Plaintiff in terms of Section 79(3), by following due diligence. The said Section and the Guidelines thereunder have been interpreted by the Supreme Court in Shreya Singhal v Union of India (2015) 5 SCC 1 to mean that any information received by the platforms would be by means of a Court order.”
In view of these observations, the High Court directed Facebook and Instagram to take down infringing online content as and when the plaintiff informs them of the same.
The Court also allowed the plea to exempt the two intermediaries from personal appearance before the trial court. Further, the plaintiff was granted liberty to move the trial court or avail other available legal remedies if the intermediaries do not comply with this order.