(Guest)

Whether youtube can permit uploading of content which violat

Whether Youtube can permit uploading of content which violates laws of this country?

Mr. Rajiv Nayar, learned Senior Advocate appearing for Tata Sky pointed
out that there was an unacceptable delay in YouTube LLC responding to
Tata Sky's complaint to it about the offending video which virtually sought
to teach the public how to hack Tata Sky's set top boxes (STBs) which were
encrypted, thereby enabling free viewership of TV channels/contents which
were otherwise available only to subscribers. He referred to Rule 3 (2) (d)
and (e) and Rule 3 (4) of the Information Technology (Intermediaries
Guidelines) Rules 2011 ('ITIG Rules') and submitted that YouTube LLC
was obliged to act with promptitude once it was clear that the offending
videos were illegal inasmuch as that Tata Sky's STBs could be hacked into
through simple steps. He referred to the order of the Supreme Court in Sabu
Mathew George v. Union of India 2016 SCC OnLine SC 681 in which it
was observed that the intermediaries there "cannot put anything that violates
the laws of this country."
In the present case neither Tata Sky nor YouTube appear to have been
clear, in the first instance, whether the complaint pertained to a trademark or
a copyright infringement or to some other legal issue. The correspondence
exchanged between them reflects this confusion. However, there could be
complaints regarding some material on the website of YouTube which by
their very nature require it to act immediately without insisting on the
Complainant having to clearly demonstrate that the complaint falls within
one or the other category that YouTube has identified for the purposes of
acting on such complaints.
The Community Guidelines are meant to guide a person uploading
content on what should not be uploaded. It is understandable that with the
huge volume of uploads it is not practical for YouTube to be viewing each
upload in order to decide whether it is objectionable from the point of view
of its Community Guidelines. However, when a specific instance of possible
violation is drawn to its attention, its review team will have to view the
content and take a call on whether it requires to be taken down. The
response time as well as the response itself are both critical for a
complainant. In the present case Tata Sky's specific complaint was that the
video was "giving step by step instructions on possible hacking" of its STBs
in order to receive to receive High Definition content, free of cost. Tata Sky
pointed out that this was violative of its rights and of broadcasters who own
the HD content broadcast through Tata Sky Platform and was an offence
under Section 66 of the IT Act. In terms of Rule 3 (1) (e) of the ITIG,
YouTube is obliged not to host content that violates any law for the time
being in force. In determining it to be a complaint regarding 'circumvention
of technological measures' which is defined as an offence under Section 65
A of the Copyright Act, YouTube's review team appears to have got into a
bind about correctly 'categorising' it instead of actually taking a call on
whether the nature of the content required taking down. If it had focused on
the latter aspect the need for Tata Sky to have approached this Court for
relief could have been avoided.
IN THE HIGH COURT OF DELHI AT NEW DELHI

CS (COMM) 223/2016
TATA SKY LTD.
versus
YOUTUBE LLC & ORS. .
CORAM: JUSTICE S. MURALIDHAR
DATED: 10.08.2016