Delhi High Court - Orders
Moonshine Technology Private Limited & ... vs The Advertising Standards Council Of ... on 13 September, 2022
Author: Amit Bansal
Bench: Amit Bansal
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 553/2022 & I.A. 14744/2022 (for exemption),
MOONSHINE TECHNOLOGY PRIVATE
LIMITED & ANR. ..... Plaintiffs
Through: Mr.Chander M.Lall, Sr.Advocate with
Mr.Subhash Bhutoria, Ms.Ananya
Chug, Ms.Trushita Mehra and
Mr.Parag Singhal, Advocates.
versus
THE ADVERTISING STANDARDS
COUNCIL OF INDIA ..... Defendant
Through: Ms.Avni Singh and Mr.Aman Durga,
Advocates.
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
ORDER
% 13.09.2022 I.A. 14745/2022 (for exemption)
1. Subject to the plaintiffs filing the original, true typed copies and copies with proper margin of the documents on which the plaintiffs may seek to place reliance, within four weeks from today, exemption is granted for the present.
2. The application is disposed of.
CS(OS) 553/2022
3. Let the plaint be registered as a suit.
4. Issue summons in the suit. Summons are accepted by the counsel appearing on behalf of the defendant council.
Signature Not Verified Digitally Signed By:AMIT BANSALCS(OS) 553/2022 Page
Signing 1 of 6 18:38:26
Date:14.09.2022
5. The written statement shall be filed within thirty days from the receipt of summons. Along with the written statement, the defendant council shall also file affidavit of admission/denial of the documents of the plaintiffs.
6. Liberty is given to the plaintiffs to file replication(s), if any, within thirty days from the receipt of the written statement. Along with the replication(s) filed by the plaintiffs, affidavit of admission/denial of the documents of the defendant council be filed by the plaintiffs.
7. List before the Court on 9th December, 2022.
I.A. 14743/2022 (O-XXXIX R-1 & 2 of CPC)
8. The present suit has been filed on behalf of the plaintiffs seeking grant of permanent injunction as well as damages against the defendant council in respect of the advertisement of the plaintiffs. The plaintiffs are aggrieved with a communication dated 23rd August, 2022 sent on behalf of the defendant council to the plaintiffs and copied to Google LLC. The operative part of the said communication is set out below:
"The Consumer Complaints Council (CCC) viewed the YouTube advertisement (https://www.youtube.com/watch?v=3GtoA4meB0g), considered the complaint and the advertiser's response. The CCC observed that the advertiser is promoting games offered by PokerBaazi. The protagonist -- celebrity (Shahid Kapoor) is shown roaming the streets playing a game of poker on his mobile phone and ignoring his surroundings. He walks through the crowded market corridors, inside open eateries, within moving vehicles on the road, and amongst group of people dancing. The CCC concluded that these acts shown encourages an unsafe/dangerous practices without justifiable reason, manifests a disregard for safety, and encourages negligence. The YouTube advertisement contravened Chapter III, 3.3 of the ASCI Code. This complaint was UPHELD. In view of the above CCC recommendation may we request you to suitably modify the above-referred advertisement and Signature Not Verified Digitally Signed By:AMIT BANSAL CS(OS) 553/2022 Page Signing 2 of 6 18:38:26 Date:14.09.2022 withdraw the claim objected to within ten business days. You may have a call with the designated officer, Ms. Riddhi Sangoi, on +91 7021186351if you wish to seek any guidance on the way forward.
Kindly note that our procedure also provides a Review of the CCC Recommendations. You are requested to write in at [email protected] no later than August 30, 2022, should you wish to seek the same.
May we have your assurance of compliance with respect to CCC recommendation via email at [email protected] indicating if the advertisement is suitably modified/discontinued across media including TV, Print, Digital media, etc., as applicable, latest by September 07, 2022."
9. Senior counsel appearing on behalf of the plaintiffs contends that on the basis of the aforesaid communication, Google LLC/YouTube has taken down the aforesaid advertisement of the plaintiffs, which is subject matter of the said communication. He submits that the defendant council should be directed to withdraw the communication and also be restrained from creating any further impediments in respect of the dissemination of the aforesaid advertisement of the plaintiffs.
10. Senior counsel for the plaintiffs also submits that the advertisement in question has a limited life and the plaintiffs have spent Rs.35,00,00,000/- in respect of the said advertisement.
11. Counsel appearing on behalf of the defendant council, on advance notice, submits that as can be seen from the portions of the said communication extracted above, it is in the nature of a recommendation only and the same is not binding, either on the plaintiffs or on any of the advertisers. She further submits that in the event the plaintiffs do not comply Signature Not Verified Digitally Signed By:AMIT BANSAL CS(OS) 553/2022 Page Signing 3 of 6 18:38:26 Date:14.09.2022 with the aforesaid recommendations, the defendant council is obligated to write to the Ministry of Information and Broadcasting and the Department of Consumer Affairs and thereafter, the complaint stands closed on their end.
12. It is further stated on behalf of the defendant council that nowhere in the plaint have the plaintiffs averred that their advertisement has been taken down by Google LLC/YouTube pursuant to the communication dated 23rd August, 2022 sent by the defendant council.
13. Senior counsel for the plaintiffs places reliance on paragraphs 25 and 26 of the plaint to show the averments made by the plaintiffs in respect of the action taken by Google LLC after the recommendation dated 23rd August, 2022 was sent to them by the defendant council. Paragraphs 25 and 26 of the plaint are set out below:
"CAUSE OF ACTION:
25. The cause of action accrued in favour of the Plaintiff on August 23, 2022 when the Plaintiff received the decisions of the Defendant whereby the Defendant had asked the Plaintiff to withdraw or to modify the YouTube advertisement, which is in issue in the present suit. The cause of action is a continuing one and arises on each occasion till the time the impugned order communicated via email dated August 23, 2022 by the Defendant is not set aside. The suit is within time.
JURISDICTION
26. The Defendant has its presence throughout India through its website www.ascionline.in which is an interactive website and people throughout the country can file their complaints through this website. The Defendant entertains complaints filed by parties against advertisements through this website. Furthermore, a part of the cause of action arises in Delhi, within the jurisdiction of this Hon'ble Court for the reason that the Plaintiff's Signature Not Verified Digitally Signed By:AMIT BANSAL CS(OS) 553/2022 Page Signing 4 of 6 18:38:26 Date:14.09.2022 advertisement which has been restrained by the Defendant was shown on an OTT Platform which is streamed in Delhi and was available on www.youtube.com which is accessible in Delhi and hence, the impugned recommendation and illegal acts of the Defendant has gravely impacted the Plaintiff's business pan- India including Delhi. Also, Plaintiff No. 1, which owns the PokerBaazi trademarks, had received all the notices and communications at its office located within the jurisdiction of this Hon'ble Court. Thus, by virtue thereof and by virtue of provisions of Civil Procedure Code, 1908, this Hon'ble Court has territorial jurisdiction to entertain and adjudicate upon the present suit."
14. Both sides have also referred to various judgments passed by this Court and the Bombay High Court on the functioning and powers of the defendant council. All the aforesaid judgments would have to be considered before taking a view with regard to the effect of the recommendation of the defendant council.
15. Issue notice.
16. Notice is accepted on behalf of the counsel for the defendant.
17. Reply be filed within three weeks.
18. Rejoinder thereto, if any, be filed before the next date of hearing.
19. I have examined the contents of the plaint. In my view, the aforesaid paragraphs cannot be read in a manner to infer that Google LLC has taken down the advertisement of the plaintiffs on account of the communication received from the defendant council. Nor has Google LLC been impleaded as a party in the present suit to confirm the said position. Therefore, at this stage, there is nothing to demonstrate that the impugned communication has caused hindrance in the dissemination of the advertisement of the plaintiffs.
20. As noted in the communication dated 23rd August, 2022, it is only in the nature of a recommendation. The plaintiffs have been requested to Signature Not Verified Digitally Signed By:AMIT BANSAL CS(OS) 553/2022 Page Signing 5 of 6 18:38:26 Date:14.09.2022 suitably modify the advertisement. Further, the plaintiffs have been given an option for seeking a review of the CCC recommendations. Counsel for the defendant council also confirms that the said communication is not binding. Therefore, at this stage, I am not inclined to pass any ad interim order in favour of the plaintiffs.
21. List on 9th December, 2022.
AMIT BANSAL, J.
SEPTEMBER 13, 2022 at Signature Not Verified Digitally Signed By:AMIT BANSAL CS(OS) 553/2022 Page Signing 6 of 6 18:38:26 Date:14.09.2022