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Amazon Seller Services Pvt. Ltd., vs M/S Indusviva Health Sciences Pvt Ltd., on 28 August, 2019
cites
The Code of Civil Procedure, 1908
Amway India Enterprises Pvt. Ltd. vs 1Mg Technologies Pvt. Ltd. & Anr. on 8 July, 2019
6.1. The respondent/plaintiff issued notice to the
appellant to stop hosting its products on its web site.
At that point of time nothing prevented the appellant
from disclosing the name of the person or the agency
using its platform for sale of the plaintiff's products.
The appellant cannot say that it cannot identify the
seller of plaintiff products. The appellant has taken an
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adamant stand that it need not filter the contents of its
users. There is a clear violation of the guidelines. The
appellant has not taken consent from the plaintiff. He
refers to the judgment of the High Court of Delhi in
Amway India Enterprises Private Limited vs IMG
Technologies Private Limited and Another [CS (OS)
410/2018 decided on 8.7.2019] to argue that in a
circumstance pleaded by the plaintiff, the High Court of
Delhi rejected the stand of an intermediary. He argues
that the trial court is justified in granting an order of
injunction. When the discretion is properly exercised by
the trial court, there is no ground for interfering with
that order and therefore appeal should be dismissed.
G.J. Fernandez vs State Of Mysore & Ors on 14 April, 1967
In this context he refers to
the judgment of the Supreme Court in the case of
G.J.Fernandez Vs. State of Mysore & others [(1967)
3 SCC 636] and Syndicate Bank Vs. Ramachandran
Pillai and others [(2011) 15 SCC 398]. Therefore, it
is his argument that the trial court should not have
granted an order of temporary injunction against the
appellant. The plaintiff has not made out prima facie
case.
Section 66A in The Information Technology Act, 2000 [Entire Act]
Section 43 in The Code of Civil Procedure, 1908 [Entire Act]
Shreya Singhal vs U.O.I on 24 March, 2015
8. Now in the present case the appellant claims
protection under Section 79 of the Act. It claims to be
an intermediary. It does not dispute plaintiff's products
being sold on its platform. It also does not dispute
having received e-mail communication and legal notice
from the plaintiff/respondent. But it takes a stand that
such communication is not a knowledge attributable to
it for stopping sale of plaintiff's products. Reliance is
placed on the decision of the Supreme Court in the case
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of Shreya Singhal (supra). I do not think that the
appellant can take shelter under this decision.
My Space Inc. vs Super Cassettes Industries Ltd. on 23 December, 2016
9. The appellant's counsel has relied upon the
judgment of the High Court of Delhi in the case of
Myspace Inc Vs. Super Cassettes Industries
Ltd.(2016 SCC Online Del. 6382). This judgment is of
no avail to appellant. In this decision what is
complained of is infringement of copy right by users of
social media on the platform of an intermediary namely
"My Space". In fact in para 63 of the judgment, it is
observed by the High Court of Delhi that if the host has
specific knowledge that the transmitted content is
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unlawful, then no safe harbour can be urged. Therefore
the appellant's contention that it can claim protection
under Section 79 of Act cannot be accepted.
Kent Ro Systems Ltd & Anr vs Amit Kotak & Ors on 18 January, 2017
(c) The defendant has contended that it is an
intermediary and section 79 of the
Information Technology Act provides a safe
harbour from liability arising due to illegal
and infringing activities carried on by the
third parties. This stand cannot be accepted
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because after coming to know about hosting
of infringing information, the defendant
should have removed it. It is held by the
High Court of Delhi in the case of Kent RO
Systems Limited and Another vs Amit
Kotak and Others [2017 SCC Online Delhi
7201] that the intermediaries have to be
vigilant and should declare to all its users, its
policies and advice them not to host any
infringing information on the website of the
intermediary. Therefore, the defendant should
have been diligent before sale of the infringing
products and only in that event protection
under section 79 of the Act will be available.
Even Rule 3 of the Information Technology
(Intermediaries Guidelines) Rules, 2011
requires the intermediary to be diligent while
discharging its duties to host the information
on its website. It is not the case of the
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defendant that it has adhered to Rule 3 of the
Rules.
Section 151 in The Code of Civil Procedure, 1908 [Entire Act]
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