India: The Interpretation Of "Actual Knowledge" – Safeguarding The Safeguard For Intermediaries From Intermediary Liability

On August 28, 2019 the Hon'ble Delhi High Court, in FaceBook Inc &Anr. v. Surinder Malik &Ors. CM(M) 1263/2019, clarified the scope of intermediary liability insofar as trade mark infringement is concerned. 

Surinder Malik had filed the suit against four (4) defendants who are alleged to be infringers on the grounds of trade mark infringement, passing-off, etc. seeking protection of the trademark DA MILANO. Defendants No. 1 to 4 were alleged to have put posts on the Facebook and Instagram advertising and offering to sell products bearing the mark DA MILANO. Mr. Malik impleaded Facebook Inc. and Instagram LLC as Defendants Nos. 5 and 6 so as to ensure that the posts containing the DA MILANO mark are taken down. Facebook and Instagram denied liability on the ground that they are intermediaries. 

The trial court passed an order requiring personal appearance of the representatives of Facebook and Instagram. Both defendants contested the order requiring personal appearance, while admitting their role as intermediaries. The Court also directed both parties to take down posts when the Plaintiff informs them of use of the DA MILANO mark on their platforms. 

The order clarifies the construction of "actual knowledge" by reiterating the narrowed down scope of actual knowledge in consonance with ruling in Shreya Singhal v. Union of India [2015] 5 SCC 1. The order takes into consideration that if the interpretation of 'knowledge' is not classified by the means of information, it would be very difficult for intermediaries like Google, Facebook, etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not. Thus, attributing due consideration to the practical aspect of analysing such a large quantum of information regarding infringing content uploaded on online platforms, the Courts have narrowed down the ambit of "actual knowledge".

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