Last month the High Court in Delhi ordered WhatsApp to suspend accounts that allegedly shared a pirated movie. The Court also told WhatsApp to take similar action against other accounts following demands from a copyright holder. While WhatsApp did suspend accounts, the company has now convinced the Court that due to end-to-end encryption, copyright holders shouldn’t have “unfettered discretion” over account suspensions.
Following the release of the movie ‘Radhe: Your Most Wanted Bhai’ in India, rightsholder Zee Entertainment Enterprises said that it had found pirated copies being circulated via WhatsApp and Telegram.
Zee filed official complaints with cybercrime police and took its battle to the Delhi High Court, filing an application for interim relief against a number of defendants who either distributed the movie online or helped to facilitate such transfers.
One of the defendants in the case is WhatsApp, which informed the Court that it has policies in place to deal with copyright infringement, including by suspending or terminating user accounts.
In an order handed down May 20, Justice Sanjeev Narula awarded an ex-parte injunction against eight alleged pirates and ordered WhatsApp to suspend the accounts of two yet-to-be personally identified users. He also informed WhatsApp that when instructed by Zee, it must suspend the accounts of any other user alleged to have pirated the movie within 24 hours.
WhatsApp Suspends Users But Objects To Future Suspensions
At a video conference hearing on June 1, it was revealed that service providers for eight defendants had handed over their personal details to the plaintiffs. Counsel for four of the alleged pirates indicated that they wish to “amicably settle the matter” with Zee but whether the media company is open to settlement is not yet clear.
In respect of WhatsApp, counsel Mukul Rohatgi told the Court that his client had suspended two accounts per its May order but raised concerns over the instruction to suspend future accounts based simply on the allegations of Zee.
Rohatgi argued that as an “intermediary” under the Information Technology Act, 2000, WhatsApp is immune from liability for making available or hosting content circulated on the WhatsApp Service. The only situation where it could be held liable is if the company obtains “actual knowledge” that specific content is unlawful yet refuses to take down or disable that content.
According to Rohatgi, mere receipt of allegations of copyright infringement from Zee does not constitute “actual knowledge” of unlawful content. Furthermore, since communications between WhatsApp accounts are encrypted end-to-end, WhatsApp cannot see what the messages contain. This means that it cannot validate the claims from Zee which effectively gives the broadcaster “unfettered discretion” to remove WhatsApp accounts as and when it chooses.
Zee Entertainment Argues in Favor of Account Suspensions
Representing Zee, counsel Amit Sibal said that the directions for WhatsApp to suspend accounts were “just and proper” since Zee is a responsible company and can be trusted not to misuse the order. In any event, any request by Zee can be subjected to judicial scrutiny. Sibal also welcomed additional safeguards if that would mean the injunction could remain in place.
In his order, Justice Narula told the companies that the issue would require additional consideration but in the meantime, WhatsApp will not have to suspend accounts based on mere allegations of copyright infringement. The Court will make that decision instead.
“This Court has been issuing such directions in relation to infringement of copyright, especially in matters where the content is published on the websites which are also referred to as ‘rogue websites’,” the Judge writes.
“However, the Court prima facie finds merit in the contention of Mr. Rohatgi that since the messages between WhatsApp users are protected with an end-to-end encryption protocol, [WhatsApp] would not be in a position to review any accounts reported by the Plaintiff in the future to confirm that they are in fact selling pirated copies of the film in question.
“Thus, it would be appropriate that any further direction for suspension of WhatsApp accounts be issued by the Court. Accordingly, the direction contained in the order dated 20th May, 2021 insofar as it directs [WhatsApp] to suspend the accounts, on the request of the Plaintiff, is kept in abeyance till the next date of hearing.”
Justice Narula’s order can be found here (pdf)
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