Delhi High Court - Orders
Gujarat Cooperative Milk Marketing ... vs Sujay Kumar & Ors on 2 February, 2024
$~6&7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 45/2021, I.A. 1353/2021, I.A. 9877/2021, I.A. 9878/2021
I.A. 19665/2022.
GUJARAT COOPERATIVE MILK MARKETING FEDERATION
LTD & ANR. ..... Plaintiff
Through: Mr. Abhishek Singh, Ms. Elyin Joshy,
Mr. J. Amal Anand, Mr. Ujjawal Verma
and, Ms. Alisha Sharma, Advocates.
versus
SUJAY KUMAR & ORS. ..... Defendant
Through: Mr. Anurag Ahluwalia, CGSC with Mr.
Abhigyan Siddhant, (GP), Advocate.
Mr. Varun Pathak, Mr. Vishesh Sharma,
Advocates for D-2/ Meta Platforms.
Mr. Aditya Gupta, Ms. Aishwarya Kane
& Mr. Sauhard Alung, Advocates for
Google Ireland.
Mr. - Deepak Gogia & Mr. Aadhar
Nautiyal, Advocate for D-3.
Mr. Neel Mason, Mr. Vihan Dang &
Mr. Aditi Umapathy, Advocates for
D- 6/Google LLC
7+ CS(COMM) 273/2021, I.A. 9385/2021 & I.A. 15944/2021.
GUJARAT COOPERATIVE MILK MARKETING FEDERATION
LTD & ANR. ..... Plaintiff
Through: Mr. Abhishek Singh, Ms. Elvin Joshy,
Mr. J. Amal Anand, Mr. Ujjawal Verma
and Ms. Alisha Sharma, Advocates.
versus
RISHABH KAUSHAL & ORS. ..... Defendant
Through: Mr. Smriti Sinha, Ms. Vasundhara
Nagrath, Advocates for D-1
Mr. Varun Pathak, Mr. Vishesh Sharma,
Advocates for D-2/ Meta Platforms
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 06/02/2024 at 00:52:03
Mr. - Deepak Gogia & Mr. Aadhar
Nautiyal, Advocate for D-3.
Mr. Neel Mason, Mr. Vihan Dang &
Mr. Aditi Umapathy, Advocates for
D- 6/Google LLC
CORAM:
HON'BLE MR. JUSTICE ANISH DAYAL
ORDER
% 02.02.2024
1. The issue of immediate concern which is pending hindering the progress of trial in the suit is the identity of defendant no. 5, arrayed currently as "WIDEOPEN". Defendant no. 5 had been arrayed by the plaintiff, regarding allegation of disparaging content posted relating to their company and trademark "AMUL" on social media including You Tube. While disparaging posts by various defendants had been injuncted by previous orders of this Court, the issue relating to defendant no. 5 assumed focus since the identity of defendant no.5 was not revealed by Google LLC (the operator of the platform YouTube).
2. Counsel for the Google LLC submitted that defendant no.5 was operating out of the European Union and the data in relation to the Basic Subscriber Information (BSI) was protected under GDPR rules of the European Union. Further, counsel for Google LLC submitted that their subsidiary, Google Ireland, is the repository of the data relating to the identity of defendant no.5.
3. Counsel for Google Ireland submits that they are bound by the GDPR rules and therefore, are unable to reveal the identity of defendant no.5 to this Court.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 06/02/2024 at 00:52:03
4. This issue had been deliberated by this Court previously and submissions by Senior Counsel on behalf of Google Ireland had been made which are noted in order dated 21st November, 2022.
5. Pursuant to an assessment of the various provisions of the GDPR and procedural laws of Irish Courts, the following was noted by this Court:
"7. On the basis of the above, submission of Mr. Nigam, Id. Senior Counsel is that a conjoint reading of Article 48 of GDPR, the Foreign Tribunals Evidence Act, 1856, and the Superior Court Rules (Ireland), shows that the only manner in which the BSI details of M/s. WIDEOPEN can be obtained currently, pursuant to the orders of an Indian Court, would be either by means of a legal process through Irish Courts or by way of a Letters Rogatory through the Government. He submits that in the absence of a 'Mutual Legal Assistance Treaty' between India and Ireland, there is no other procedure to obtain the said data."
(emphasis added)
6. As regards the existence of the 'Mutal Legal Assistance Treaty' between India and Ireland, Mr. Anurag Ahluwalia, CGSC, has submitted that there is no Mutal Legal Assistance Treaty (MLAT) between India and Ireland.
7. Two options, therefore, remain before this Court in order to ensure that the identity of defendant no. 5 is disclosed for the sake of these legal proceedings.
8. Either a Letters Rogatory is issued through the Government or a direction is passed by this Court to Google Ireland to seek appropriate orders from the local Irish Courts in respect of their obligations under the GDPR.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 06/02/2024 at 00:52:04
9. The former, per Mr. Ahluwalia, will merely involve an official communication between the two countries, and may not necessarily culminate in a direction from the local Irish Courts.
10. Therefore, the latter option maybe preferable. This was presented to the counsel for Google Ireland. However, he does not have instructions in this regard and in any event seeks to file a response in this regard. He is permitted to do so and may file a response, placing their reservations to this option, if any. Copy of the response filed by Google Ireland may be given to the plaintiff who may file a rejoinder thereto before the next date of hearing.
11. In this context, counsel for the plaintiff has also drawn attention to the observation of this Court in Neetu Singh and Another v Telegram FZ LLC and Others (2022) SCC OnLine Del 2637 at para 46, where it has been noted in proceedings before this Court that plaintiffs cannot be left remediless on account of data protection laws in various other jurisdictions in the world. The said observation is extracted under, considering it is in context of the issue before this Court:
"46. In view of the above factual and legal position, in the opinion of this Court, merely because Telegram chooses to locate its server in Singapore, the same cannot result in the Plaintiffs' - who are copyright owners of course materials - being left completely remediless against the actual infringers, especially in order to claim damages and avail of other legal remedies in accordance with law. If such an argument is accepted, in the current world where most dissemination happens through online messaging services and platforms, IP violations would go completely unchecked. This cannot be the intention of law. The provisions of the IT Act and the Rules made therein have to be construed harmoniously with the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 06/02/2024 at 00:52:04 rights and remedies provided to the copyright owners under the Copyright Act. Indian Courts are competent to decide issues relating to infringement of copyright and the mere fact that Telegram is operating a messaging service in India which chooses not to locate its servers in India cannot divest the Indian Courts from dealing with copyright disputes or divest copyright owners from availing their remedies in Indian Courts. In the present age of cloud computing and diminishing national boundaries in data storage, conventional concepts of territoriality cannot be strictly applied. The dynamic evolution of law is essential to ensure appropriate remedies in case of violation of copyright and other IP laws"
12. Counsel for defendant No.3 has made a request that their erstwhile entity 'Twitter, INC' has now merged into 'X Corp' and therefore, the memo of parties be accordingly amended. Plaintiff shall file an amended memo of parties in this regard.
13. As regards the compliance on procedural aspects of the matter, the matter is listed before the Joint Registrar on 15th January, 2024.
14. List before the Court on 22nd April, 2024.
ANISH DAYAL, J FEBRUARY 2, 2024/RK/na This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 06/02/2024 at 00:52:04