Kent RO Systems Ltd & Anr. v. Amit Kotak & Ors.

Court: High Court of Delhi

Case No.: CS (COMM) 1655/2016
Order dated: 18 January, 2017
Issue: Whether EBay can be obligated to remove the content alleged to be infringing on an ex-
ante, in contradiction to
an ex-post, basis?
Judgement: The Court commenced its analysis by noting that, in order to prevail, the plaintiffs
would have to explain
how the Intermediary Guidelines spell out an obligation upon intermediaries to screen content to
ascertain if it is of
an infringing character. This onus would be imposed upon the plaintiffs, the Court reasoned, in
light of the fact that a
bare perusal of the Rules reveals that intermediaries are only bound to apprise users of their
privacy policy/ rules and
regulations and to disable infringing content, on being informed of its existence, within 36 hours.
Since the plaintiffs were apparently unable to answer this question in a satisfactory fashion, the
Court arrived at the
conclusion that no such directions could be issued. It gave 3 reasons in support of this
conclusion. First, to accept the
plaintiffs’ prayer, it reasoned that it would result in converting the intermediary “into a body to
determine whether there is
any infringement of intellectual property rights or not” – a role which intermediaries are ill-
equipped to perform. Second,
if the intention of the legislature was to cast such an obligation upon intermediaries, the
intermediary guidelines would
have imposed an absolute embargo on hosting infringing content. However, the Guidelines
merely cast an obligation to
disable content on being informed that it is of an infringing character. Finally, since no
obligation to screen infringing
content is imposed on the publishers of newspapers etc., it would be inappropriate to impose
such an obligation on
intermediaries who are similarly situated as the aforementioned categories of service providers.