The the world is witnessing an unprecedented pandemic situation and even in the near future, the conditions are far from being normal. The state of affairs is appalling since the only steps to curb COVID19’s expansion so far are social distancing and lockout. In India, the administration of justice is already burdened with pending cases and has a background of delaying its procedure and the coronavirus has made the situation even worse. To ease the pressure on the courts, an improvised and efficient solution is needed and the answer can only be Online Dispute Resolution.

Online Dispute Resolution (ODR) is an umbrella term that describes dispute resolution processes that are assisted by the use of Information Technology.[1] Online dispute resolution (ODR) is in its infancy stage in India and is gaining popularity every day. E-commerce and E-governance gained formal and legal recognition with the enactment of the Information Technology Act, 2000.

This article covers the meaning of ODR, the outlook of various nations towards it, why there is need of this new phenomenon and its use in Consumer Redressal.

MEANING OF ONLINE DISPUTE RESOLUTION

Online dispute resolution or ODR is a method of resolving conflicts outside the judiciary, incorporating technology with Alternate dispute resolution methods. Many of us have participated in some form of ODR, whether through e-mail contact with a tribunal or through the use of online disclosure channels to manage disclosure. The resolution of disputes may be done with the help of Information and Communication Technology (ICT). It is the new counterpart of ADR and ICT. When the process is conducted entirely online, it is referred to as ODR, which means performing most of the dispute resolution procedure online, including initial filing, evidence-based processes, and oral hearings where necessary, online discussions, and even binding settlement rendering. ODR is the first step towards virtual dispute resolution. Online dispute resolution in India is a mechanism that strengthens the simplicity and advantages of alternative dispute resolution in India by requiring the parties to resolve the dispute by just sitting at home.

OUTLOOK OF VARIOUS NATIONS

Various courts have established or are looking forward to establish the online court system. On 18 August 2017, China established its first cyber court specializing and dealing with internet-related lawsuits in Hangzhou’s e-commerce hub, following an increase in the number of online disputes. Later, on 9 August and 28 September 2018, two new Cyberspace Courts in Beijing and Guangzhou were opened, raising the total number of Cyberspace Courts to 3. It’s high time now that India should also draw inspiration from China and establish cyber courts for rapid and cost-efficient adjudication of matters.

UNCTAD set up a conference on Online Dispute Resolution to address transnational consumer issues. The paper on possible future work on online dispute resolution in cross-border e-commerce transactions was presented at April 2010.[2]

The European Commission offers the European Online Dispute Resolution (ODR) forum to render online shopping easier and fairer by accessing the standard dispute resolution resources.[3]

India has seen significant growth in the volume of online transactions over the past half-decade, therefore, it has now become convenient to accept ODR as an efficient dispute resolution mechanism and thus implement a rapid and reasonable dispute resolution system. NITI Aayog, in collaboration with Agami and Omidyar Network India, brought key stakeholders together to facilitate electronic dispute resolution (ODR) in India.[4] A seminar meeting was conducted by NITI Ayog where several eminent senior judges of the Supreme Court, sectaries of government, legal experts, etc. took part and also presented their views.

Justice DY Chandrachud, Judge, Supreme Court of India spoke on Technology and access to Justice–[5]

We need a fundamental change of mindset, a resolution of disputes that should not be seen as a court where justice is administered but as a service that is being used. ODR has various functions to perform:

ü  Dispute settlement: Settlement of disputes that approach the courts via a free, effective and effective procedure.

ü  Containment of disputes: Those matters that do not require judicial resolution should not at all reach the courts.

ü  Dispute avoidance: Facilitate and ensure a problem does not reach the stage of a dispute through ODR. This will ensure that an issue will not become a dispute.

The ‘Digital India’ Programme, approved by the Hon’ble Prime Minister Narendra Modi in August 2014 aims to transform the country into a digitally empowered society and knowledge economy. The program aims to provide high-speed internet access to all up to Grama Panchayat levels. It also aims to empower citizens digitally.[6]

The First International Forum on Online Courts was also held in London on 3 and 4 December, 2018, where various countries participated like England, Singapore, United States, Japan, India, etc. Dr. Sadanand Date, Joint Secretary, eCourts, Justice Department, Government of India, talked about the ongoing Indian judiciary and ICT initiatives to allow judicial systems to be technically effective. He found out that the pendency of cases in India is one of the key issues that need to be tackled.[7] India started the eCourts Integrated Mission Mode Project in 2016 as one of the National e-Governance projects being carried out in the country’s District and Subordinate Courts. The effort aims at delivering approved facilities to litigants, lawyers and the judiciary by uniform district and appellate court technology, as well as improving the Supreme Court’s ICT infrastructure.[8]

Recently, the Supreme Court of India in Meters and Instruments Private Limited and Ors. v. Kanchan Mehta, a suo moto petition titled ‘Expeditious case trial under Section 138 of N. I. Act, 1881’, observed that “it is necessary to consider the use of modern technology not only for paperless courts but also to reduce the overcrowding of courts. Categories of lawsuits that may be conducted ‘online’ partly or fully, without the actual involvement of the parties, where strongly disputed issues are not needed to be adjudicated.”[9] (Para 17)

NEED OF ONLINE DISPUTE RESOLUTION

1.      Our judiciary is already over-burdened with a number of cases. Right now, India has a total of 33,189,635 cases pending at the District level[10] and 4,142,236 cases pending in the High Courts.[11] Delay in the administration of justice and high litigation costs are also the stumbling blocks.

2.      Arbitration was originally created as an alternative to going to court for various types of disputes but over time this method has become complex and expensive. ODR offers many companies a faster, more transparent and more accessible option for resolving disputes online, especially those with high volume and low-value cases.[12]

3.      Data storage problem has been solved by an ODR system which is one of the most common concerns faced in Indian courts, whereas in ODR data storage is secured and enables transferring information as and when necessary without any difficulties.

4.      ODR which was at an infancy phase has now acquired more prominence because of COVID’19.

5.      ODR eliminates the need for traveling and reduces costs considerably. It provides for improved time and cost management, greater procedural efficiency and more innovative approaches.

6.      ODR can be accessed wherever the internet is available, according to the convenience and necessity of the parties.

7.      Other factors that make online mediation an effective tool to protect consumers include confidentiality, flexibility, economization and the removal of legal problems.

CHALLENGES FACED BY ODR

1.      There is no sufficient recognition provided to it by Legislature or Judiciary.

2.      There is lack of awareness of ODR amongst the public.

3.      There is no sufficient technology system to support ODR.

CONSUMER REDRESSAL MECHANISM

Consumers play a vital role in supporting India’s economy. Everyone is a consumer because each and every one of us is engaged in some form of exchange of goods or services through money as a medium. Gradually, there has been an increase in all kinds of disputes between distributors, distributors and sellers, buyers and sellers, etc. Therefore, legislation governing the friction between buyers and sellers was required. The Consumer Protection Act identifies the right to Redressal as a key consumer right based on the establishment of the three-tier redress system.[13]

ü  District Forum established by the State Government in each district of the state by notification.

ü  State Commission established by the State Government in each district of the state by notification.

ü  National Commission established by the Central Government in each district of the state by notification.

The Preamble to the Consumer Protection Act, 1986 notes that the act was passed in order to safeguard the customer’s interest against exploitation and to put the customer grievances to the proper consumer court in order to meet the purpose of the Act and to do justice to the customers.

The Supreme Court in M/s Afcons Infra Ltd. v. M/s Cherian Varkey Construction Company Ltd. and Ors. it was observed that “when identifying matters appropriate for Alternative Dispute Resolution (ADR), it was maintained that all customer conflicts, including conflicts where a trader/ supplier/ service provider is keen on protecting its business/ professional image and reputation or product popularity, should be directed to ADR.”[14] (Para 19)

From its founding, eBay has been at the forefront of designing and providing tools to help ODR systems. Its Dispute Resolution Center is one of the world’s largest ODR programs, and has been called the most popular example of ODR.[15]

Thus, in the territorial-based grievance redress mechanisms, the non-territorial nature of electronic commerce throws up new challenges to consumer protection.

ONLINE PLATFORMS

1.      In 2018, the Indian Parliament enacted the ‘Pre-Institution Mediation and Settlement Rules’ where under section 21A(2) of the Commercial Courts Act, made it necessary for commercial disputes above INR 3,00,000 rupees to mediate until proceedings are brought until the judge.

2.      His Excellency President of India Shri Ram Nath Kovind and Honorable Chief Justice of India Shri S.A. Bobde recently stressed the adoption of mediation as an instrument for the resolution of disputes and the integration of artificial intelligence in judicial proceedings.[16]

3.      In consumer disputes also mediation is proposed as an alternative dispute resolution. Chapter V of the Consumer Protection Act, 2019 provides for the establishment, at district, state and national level, of consumer mediation cells for the aim of enabling court-annexed mediation.[17]

4.      The Centre of Excellence on Alternative dispute resolution, called “CADR,” is a website based entity facilitating ODR services. The Center is founded to undertake and facilitate research and to produce and disseminate expertise in the field of alternative dispute resolution methods.

5.      SAMA is a completely new way of resolving disputes between businesses and customers, employers and employees, landlords and tenants, professionals and customers or anyone else, all online, quickly and cost-effectively. Using sophisticated technology and a network of skilled professionals, SAMA ensures that your dispute will end with the end of the week.[18]

6.      AGAMI is bringing forward ideas that serve justice. AGAMI does so by identifying ideas, reframing problems, and catalyzing collaborative action. They do that with an abundance and transparency mentality.

CONCLUSION

Considering the current state of the judicial system in India, it can be concluded that there exists an utmost necessity to find alternatives to traditional litigation. As “justice delayed is justice denied” as propounded by William Ewart Gladstone. A radical shift in mentality has to be undertaken by people to distinguish the notion of justice from the place named, court.  The future will be a hybrid style, incorporating the best of the real world with the electronic world. People should reimagine the whole process of delivering justice to operate within the hybrid system. Promoting a dispute settlement mechanism that is allowed by technology would not only benefit the litigants but will ease the pressure and increase the performance of the Indian legal system. Therefore, the sooner ODR is adopted, the better it will be for the nation in general, and the justice seeker in particular.[19]

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Introduction

We see the constant struggle between labour and capitalists, and how capital exploits them for its own gain while failing to provide them with basic necessities of life. As a result, India has enacted several of the labour laws aimed at improving the working conditions of workers, many of which are directly related to the growth of industry and the national economy. As a result, the growth of labor legislation is critical for the nation’s growth. The International Labour Organization (ILO) in 1919 paved the way for the development of labour laws in India. In India, labor policy has been very dynamic, adapting and catering as a stimulant to the environment and meeting the needs of social justice and economic development.

Pre-1920s

With the advent of industrialisation, there has been a steady change in the labor force from rural to urban areas; however, colonial authorities paid little attention to work organization, aside from the penal provisions in present at the moment, which were formulated for labor supply and discipline for emerging industries. The majority of British regulations relating to workers revolved primarily around “forced labor.”

The Workmen’s Breach of Contract Act, 1859was a significant piece of legislation at the time. This Act not only demanded fines in cases of employment breaches, but it also provided for orders for specific performance of service.

The government began to intervene in the employment of women and children, as well as the working hours of workers in factories and mines, in the 1880s. The majority of law is the product of various government investigations. However, the legislation was not fairly enforced in these industries’ working practices, resulting in a very limited and selective effect. For example, the Factories Act of 1881 only applied to factories with 100 or more employees using electrical power. The Factories Act of 1891 applied to factories with 50 or more employees on the premises.

Post-World War I and the The 1920s

Several factors mixed the industrial and political environment, including the rise of a strong nationalist movement, the rapid growth of trade unions (which led to the formation of the All India Trade Union Congress in 1920), and the emergence of Communist influence in the labor movement. At that time, the recently formed ILO (International Labour Organization) began to influence the policies in relation to workers.
The Factories Act of 1922, the Mines Act of 1922, and the Workmen’s Compensation Act of 1923 were all protective legislation at the time. With regards to industrial relations, this time saw the advent of a modern outlook, with the formulation of The Trade Union Act of 1926 and the Trade Dispute Act of 1929, both of which are formally still in use by present-day India.

The 1930s and the Pre-Independence Period

Owing to the world economic depression, there was a surge in unemployment. During this period, there was continuous agitation for Indian independence, in which the All India Trade Union Congress played a key role. A wave of strikes accompanied the mass dismissal, which coincided with the economic recession.[1]

In 1929, the British government established the Royal Commission on Labour in India. The Indian Labour Movement opposed the commission. Unrest in the workplace, wage reductions, and employment losses persisted.

The Industrial Employment (Standing Orders) Act of 1946 required employers to provide employees with transparent terms and conditions of employment as required by the Act’s Schedule and the concerned authorities.

The Factories Act of 1948 and the Minimum Wage Act of 1948 were also important statutes during this period. Most of these laws had a system similar to the Industrial Disputes Act of 1947, which limited their application to specific types of industry establishments.

Post- Independence, 1948 Onwards

Following Indian independence, it was resolved that the Indian Central government would be solely responsible for labor-related laws, acting for their interests and reflecting a five-year development plan that included dealing with every phase of a labor’s life, housing, welfare, good working conditions, and wages.

The Dock Workers (Regulation of Employment) Act of 1948 prohibited hiring of casual dock workers. The Employees’ State Insurance Act of 1948 enabled workers to obtain insurance in the event of illness, maternity, accident, or death, while the Plantations Labour Act of 1951 established welfare procedures for workers in the rubber and tea plantation industries. The Employees’ Provident Fund and Miscellaneous Provisions Act 1952 was present in terms of social security legislation.

In addition, India’s consistent and constant labor laws followed the previously identified dual trend. Although trade unions were legally recognized, collective bargaining was recognized, and strikes and lockouts were legal, industrial peace was promoted.

The amendment of the Industrial Disputes Act of 1947 in 1982 encapsulated with legislations that outlawed various union, staff, and employer practices that disrupted the legalized system of dispute resolution in some way. The employer’s refusal to bargain collectively in good faith was considered as unfair trade practice.[2]

The labour laws of independent India derive their roots, inspiration, and power partly from the views articulated by important nationalist leaders during the national freedom movement, partly from the debates of the Constituent Assembly, and partly from the provisions of the Constitution and the International Conventions and Recommendations. Significant human rights, as well as United Nations conventions and norms, also inspired the Labour Laws. The sessions of the different Sessions of the Indian Labour Conference and the International Labour Conference have also had a major impact on our labor laws.[3]

The Indian government adopted a policy of economic liberalization in 1991. Since Indian labor laws (including social security laws) were historically inclined to be protective of labor and not conducive to competition in the labor markets, the increased competition in the fast-changing markets presented a new set of challenges.

India’s Recent Developments and Reforms

The Ministry of Labour and Employment, Government of India has informed on the ease of compliance in order to maintain registers under Specified Labour Laws Rules, 2017 (Ease of Compliance Rule). These rules help establishments to merge registers, in either electronic or physical form, as required by the law. The underlying objective behind this was to reduce the burden of the establishments while also making it easier to do business in India.

The Second National Commission on Labor (2002) proposed that central labor laws be grouped into classes such as:

ü  Industrial Relations

ü  Wages

ü  Social Security

ü  Working conditions and welfare

The Commission proposed this because existing labor laws were outdated, complicated, and had inconsistencies in their definitions. For the sake of transparency and uniformity, the Commission recommended that labor codes be simplified.

The Central Government introduced four bills in 2019 to consolidate 29 central laws into 4 labor codes. There are the following:

1.      Industrial Relations Code includes 3 laws:

1.1  The Trade Unions Act, 1926

1.2  The Industrial Employment (Standing orders) Act, 1946

1.3  The Industrial Disputes Act, 1947

It aims to consolidate and amend the laws relating to Trade Unions, conditions of employment in industrial establishment or undertaking, investigation and settlement of industrial disputes. 

2.      Code on Wages includes 4 laws:

2.1  The Payment of Wages Act, 1936

2.2  The Minimum Wages Act, 1948

2.3  The Payment of Bonus Act, 1965

2.4  The Equal Remuneration Act, 1976

It aims to regulate wage and bonus payments in all employments (industry, business, trade and manufacture). [4]

3.      Code of Social Security includes 9 laws:

3.1.The Employees’ Compensation Act, 1923

3.2.The Employees’ State Insurance Act, 1948

3.3.The Employees Provident Fund and Miscellaneous Provisions Act, 1952

3.4.The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959

3.5.The Maternity Benefit Act, 1961

3.6.The Payment of Gratuity Act, 1972

3.7.The Cine Workers Welfare Fund Act, 1981

3.8.The Building and Other Construction Workers Welfare Cess Act, 1996

3.9.The Unorganised Workers’ Social Security Act, 2008

The code aims to extend social security to all employees and workers either in the organised or unorganised or any other sectors.

4.      Occupational Safety, Health, and Working Conditions Code includes 13 laws:

4.1  The Factories Act, 1948

4.2  The Plantations Labour Act, 1951

4.3  The Mines Act, 1952

4.4  The Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955

4.5  The Working Journalists (Fixation of Rates of Wages) Act, 1958

4.6  The Motor Transport Workers Act, 1961

4.7  The Beedi and Cigar Workers (Conditions of Employment) Act, 1966

4.8  The Contract Labour (Regulation and Abolition) Act, 1970

4.9  The Sales Promotion Employees (Conditions of Service) Act, 1976

4.10                      The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979

4.11                      The Cine-Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981

4.12                      The Dock Workers (Safety, Health and Welfare) Act, 1986

4.13                      The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996

The code aims to consolidate and amend the laws regulating the occupational safety, health and working conditions of the persons employed in an establishment.

The Wages Code was passed in 2019, but the other three bills were referred to the Labour Standing Committee. Following the Committee’s recommendations, the government replaced these bills with new ones in September 2020. In September 2020, the Parliament passed three labor code bills as part of a plan to consolidate the country’s numerous labor laws.

Conclusion

Various legislations have been enacted to resolve various labor law concerns. These Acts were passed to bring to light the social and economic problems that the working class faces. Since labor laws are dynamic in nature, new legislation were drafted to adapt to the changing world and to ensure that they continue to evolve. India is working with the International Labor Organization on a variety of potential opportunities and projects.

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India has a well-established legal framework for creating an efficient environment for intellectual property (IP). The government has taken several initiatives, based on feedback from stakeholders, to create awareness and instill a culture of innovation in India. Throughout the previous years, the IP offices have been dramatically changed through various initiatives, which have made a huge difference to understanding IP and to make the patenting system more user-friendly. Some of the developments which occurred recently in 2018 and 2019 are discussed here.

DEVELOPMENTS IN 2018

Ø CASE LAWS

1.      The first ever fast track trial decision on Standard Essential Patent (SEP).

The hon’ble Delhi High Court rendered a judgment in favor of Philips on consolidated issues on 12 July 2018, in the case of Koninklijke Philips Electronics N.V. v. Rajesh Bansal & Ors.,[1] and Koninklijke Philips Electronics N.V. & Ors. v. Bhagirathi[2]. The defendants were found liable, following a long trial, for violation of Philips’ Standard Essential Patent (SEP). The Defendants were called upon to pay damages, and one of the Defendants was also directed to pay punitive damages.

Facts- Phillips had filed two proceedings against the defendant, K.S. Negi, Manglam Technology in one suit; and Bhagirathi Electronics, Big Bazar and Home Solutions Retail (India) Limited in another, for infringement of their essential patent on DVD Video Player, seeking reliefs of permanent injunction, instructions to the defendant to provide complete details about the delivery, accounts return, damages, etc.

Decision- The complainant’s claim to the whole patent pool in the DVD player cannot be assumed to be unreasonable even though the argument in the suit patent is limited to the decoding unit, since the same is an essential part of the DVD player and without which the DVD player cannot work. Since the alleged patent expired on 12 February 2015, it was not necessary to issue a permanent injunction. Additionally, the court found that one of the defendants was an ex-employee in Philips and was well aware of the suit patent and still infringed the same. Therefore, the defendant was ordered to compensate the complainant Rs.500,000  as punitive damages.

2.      No seizure of imported products which infringes the patent

With the implementation of the Intellectual Property Rights (Imported Goods) Enforcement Amendment Rules, 2018, the government has expressly removed the seizure of any imported goods that infringes a patent from the act. In a case involving dual SIM technology, the standard authority recognizing the difficulty of such commitment made this judgment which had previously been the focus of considerable discussion. The revised laws now apply to trademarks, copyright, Design and Geographical Indications.    

3.      Single color trademark dilemma

Although, Christian Louboutin had a favorable ruling from the European Court of Justice (ECJ), in related situations, the Delhi High Court rejected his assertion of exclusivity in red color for shoe sole on the basis that protection as a trademark cannot be given for a single color. The decision came in the form of a patent infringement lawsuit and passing off brought by Christian Louboutin against a party based in Mumbai, named Abubaker & Ors., who sold ladies footwear with identical red soles.[3] Interestingly, in comparison to a previous ruling by a Delhi High Court judge declaring Christian Louboutin’s ‘hot sole’ to be a well-known trademark.

DEVELOPMENTS IN 2019

Ø CASE LAWS

1)      Introduction of Dynamic Injunction

The aim is to help the right holder to avoid filing a fresh suit through the cumbersome process. The right holder can simply approach the Delhi High Court Joint Registrar with appropriate evidence documents and extend the existing injunction to the website which publishes the same infringement content. Until recently, the right holder had to lodge a fresh claim or probably use a John Doe order/ injunction by adding the party to the current suit.

The Delhi High Court has made a significant contribution to the jurisprudence in India through its judgment in UTV Software Communication Ltd. and Ors. v. 1337X to and Ors.[5], delivered on April 10, by creating a new remedy of a ‘dynamic injunction,’ whereby rights-holders do not need to go through the ‘cumbersome’ process of a judicial order to issue blocking orders to ISPs. Instead, as set out in this ruling, the complainants were allowed to approach the Delhi High Court Joint Registrar (an administrative position), to extend an injunction order already granted against a website, against a similar ‘mirror/redirect’ website containing the same content as the original website.

Facts- The plaintiffs, including UTV Software Communications Ltd., are ‘creating material, producing and distributing films worldwide, particularly in India’. The defendants are, among others, thirty named websites, along with John Doe defendants, the Ministry of Electronics and Information Technology, the Telecom Department and numerous ISPs.

Decision- Though Indian law does not allow for a ‘dynamic injunction,’ the Court claimed that the same may be given to fulfill the ends of justice and resolve the threat of piracy.

In this case the Delhi High Court agreed that the ‘dynamic injunction’ is rooted in the Singapore law provisions. However, the court held that there are other provisions in the Indian Civil Procedure Code to carry out a remedy of a similar nature.

2)      Infringement of copyright after submitting a patent application

In the case of Steer Engineering Private Limited v. Glaxosmithkline Consumer Healthcare Holdings (US) LLC and Ors.[6]

Facts– In this case, the Appellant is an Innovator Company which develops various technologies, including the extrusion process technology. The Appellant had entered into a Master Services Agreement (MSA) with the Defendants for the transfer of the extrusion process technology to be used in the manufacture of the iconic nutritious food powder, Horlicks. Having received the right to patent the technology by virtue of the MSA, the Defendants submitted all the test results and data provided to them by the Appellant for an international patent application. The appellant alleged that the patent application of Defendants infringed their copyright, as it revealed various confidential test results and data. The Defendants claimed that the MSA granted them the power of all the details and IP that was collected from the parties for the purposes of the project.

Decision– The Court noted that there was no patent infringement because the Appellant had failed to produce the original test result and the text that was provided was a redacted one. Furthermore, at the time of the transfer under the MSA, the appellant had failed to prove the nature of the confidentiality of such information and was therefore unable to claim violation.

3)      Mere silence is no acquiesce

Acquiescence is a species of estoppels, a rule of inquiry and a rule of evidence and it is essential for the Doctrine of Acquiescence that it is accompanied by encouragement or incitement, whoever possesses a legal right must have encouraged the alleged violator of that right to the detriment of the latter, confident that the former does not assert his rights against the violator.

In a recent case of Make My Trip (India) Private Ltd. v. Make My Travel (India) Private Ltd.[7], the Delhi High Court granted a “temporary ad-interim injunction” in favor of Make My Trip (India) Private Limited in a case of trademark infringement. This case is important as it upholds the principles that mere silence or non-intervention is not an approval. In order to be accepted as a defense positive encouragement on the part of the victim must also be proved.

Facts- In the present case, the plaintiff sought a permanent injunction restricting the defendant from adopting and utilizing the name Make My Travel, MMT (letter mark) and the ‘Dreams Unlimited’ tag line. The plaintiff used the MakeMyTrip and MMT brands, the MakeMyTrip Term Mark as well as the MMT letter mark constantly and uninterruptedly. The plaintiff has also used Tag Line ‘Memories Unlimited’ and ‘Hotels Unlimited’ constantly and without interruption. The plaintiff’s argument is that he has a presence in India and many other countries worldwide. Therefore, aggrieved by the adoption and usage of the Infringing Mark and Infringing Domain Name, the Plaintiff issued a notice of cease and removal of the Defendant, inter alia, to cease the use of the Infringing Marks and Infringing Domain Name, via his Lawyers.

Decisions- In favor of the appellant, the Court decision found that the word marks used by the defendant were similar and deceptively identical in nature, concept and idea, and is apparent by the usage of the words in a specific combination. It also stated that taking into consideration all companies offering identical service, the defendant is thus, responsible for infringing the trade mark of Plaintiff. Reference was made to the case of F. Hoffman La Roche v. Geofferey Manners, (1969) 2 SCC 716, where the Supreme Court held that- “True test is whether the totality of the proposed trademark is such that it is likely to cause disillusion or confusion or mistake in the minds of persons accustomed to the existing mark.” The Court stated that the plaintiff has a strong prima facie case, and that the balance of convenience is also in his favor. In case, the defendant is permitted to proceed to use unlawful signs, then severe and significant damage is likely to be done to the claimant.

4)      In-chamber proceedings to safeguard sensitive information

The Bombay High Court issued a notice ordering hearing ‘in-chamber’ for urgent applications requesting ex-parte orders in cases pertaining to intellectual property rights. This change is seen as one which is likely to prevent the leaking of information related to these cases. These cases will not be listed in open court and their number will not be posted to the HC website. This is meant to fulfill the original purpose of ‘maintaining secrecy’.[8]

In a similar case, in Johnson & Johnson v. Ashok Kumar/ John Doe & Anr.[9], the Delhi High Court’s Justice Rajiv Sahai Endlaw, passed an ex-parte order in-chamber as the defendant Pritamdas Arora dealing as M/s Medserve falsely dealt in counterfeit goods under the mark SURGICEL and the house mark ETHICON of the plaintiff in the United States. The case was alleged to have already been filed in the US court. To restrain the defendant from dealing with the mark and seizing his goods in India, both the plaintiff and the defendant’s name was sought in the Judge’s chamber.

Ø GOVERNMENT INITIATIVES

1.      Draft Guidelines for use of Geographical Indication Logo and Tagline   

A geographical indication (GI) is a sign used on products having a particular geographical origin and having qualities or a reputation due to that origin. A sign may identify a product as originating at a given location in order to act as a GI. Therefore, the product’s qualities, characteristics or reputation would be attributed in part to the place of origin. Since the characteristics depend on the geographic area of production, a direct connection exists between the product and its original place of production.[10]

In order to encourage and promote Indian products registered as Geographical Indications, the Department for the Promotion of Industry and External Trade has introduced a common GI logo and Tagline. The GI logo would serve as a certifying mark that can be used to identify all Indian products registered as GIs, regardless of divisions, making it easier for customers to recognize authentic GI products, while securing genuine GI producers’ interests. However, draft guidelines have been prepared to ensure the correct usage of the GI Logo and Tagline.[11]

2.      Govt. Approves Highway Patent Prosecution Highway (PPH): Steps to speed up Patent Examination in India

Vide notification dated 20 November 2019; the Union Government affirmed a proposal for the Indian Patent Office adoption of the Patent Prosecution Highway (PPH) program in cooperation with the Patent Office of different countries. The Indian Patent Office may only receive patent applications under this pilot program in certain specified technical fields, namely electrical, electronics, computer science, information technology, automobiles and metallurgy it said. The PP program will result in benefits for the office of the Indian IP, including a decrease in the time required to file patent applications and a decrease in the pendency of patent applications. This will lead to an improvement in the quality of patent searches and examinations.[12]

3.      DRDO provides unrestricted and free access to patents to improve local production

The Indian Defense Research Development Organization (DRDO) has introduced a new policy to help the organization to have complete access to its patents filed in India without any license or royalty payments. With the aim of “providing a boost to Indian industries and defense industries by free access to Indian patents,” the patent portfolio of DRDO, which contains over 450 patents, will be open to the public for use without any licensing or royalty fees. In addition to the new policy, DRDO also published a notice setting out the procedure for using DRDO patents. According to the notification, a licensing application must be made via the DRDO website and a processing fee must be paid of Rs 1000. The DRDO policy called for the effective, efficient and ethical management of intellectual property rights to obtain full economic potential and recognize opportunities for the commercial exploitation of IP and the creation of wealth.[13]

4.      The Government makes significant changes in the Manual of Patent Office Practice and Procedure (2019)

A New Manual of Patent Office Practices and Procedures was created by the Union Government with its notification. This new manual attempts to accommodate various developments such as the automation and digitalization of the process. This latest document further aims to enhance the transparency of the functioning of the Patent Office. This new manual is a welcome step towards simplifying the procedures by bringing greater clarity, transparency in the payment process and enabling the process to be digitized.[14]

Ø LEGISLATIVE INITIATIVE

1.      The Cinematograph (Amendment) Bill, 2019

In order to control piracy, a significant amendment to reform the new Cinematographic Act, 1952, was made. After approval by the cabinet of the Union, the Bill is undergoing a consultation process with stakeholders before being introduced in both the houses of parliament for debate. The latest amendment takes note of advancements in technology making film piracy rampant in the usage of audio-video recording equipment. The amendment makes Movie Piracy offenses punishable up to three years of imprisonment, and fines that may extend to 10 lakh or both. It proposes mandating the same penalty for even attempting or encouraging the same.[15]

Ideally, anti-piracy legislation would be aimed at stopping commercial-scale misuse of rights, but the law criminalizes disproportionately the mere act of producing a copy of a film or some part thereof, like creating a short video on your phone for any reason.

By overriding the provisions of the Copyright Act, the amendment fails to take into consideration the right to fair dealing provided under Section 52 of the Copyright Act and which covers some non-permissoned uses of copyrighted works, such as for personal usage or criticism or review. That is a vital aspect of the balance that the Copyright Act aims to maintain between securing rights and increasing access to knowledge and artistic works, and the Cinematograph Act’s draft amendment flagrantly undermines all such balance, criminalizing acts as benign as recording and sending a short clip of a film to a WhatsApp friend. Also, the penalties proposed in the draft amendment are blunt and disproportionate.[16]

2.      The Copyright (Amendment) Rules, 2019 

The amendments are being introduced to put the Copyright Act into compliance with other relevant laws and to ensure that it remains in sync with the technical developments of the digital age. The proposal is to substitute the term ‘every radio and television broadcasting’ reference in Copyright Act, 2013, with ‘every broadcasting mode’.

In the case of Tips Industry v. Wynk Music[17], the Bombay High Court held that Internet broadcasting is not covered by the statutory licensing scheme under Section 31D of the Copyright Act. In the opinion of the Court, its view is supported by Rules 29 and 31 of the Copyright Rules which provide for the issuing of notices and the determination of royalties (respectively) only with respect to radio and television broadcasting.

The proposed reform is considered by the Government as a clarification that the statutory licensing system under Section 31D extends to all forms of broadcasting including internet broadcasting and is not restricted to radio and internet broadcasting only.

3.      New Patent Rules

According to the new Rules, the originals will be submitted by the Patent Agent only if the Patent Office so requests. The originals duly authenticated shall be submitted within 15 days of receipt of such a request. No transmitting fee to be charged by the applicant while filing PCT applications. There are no fees for preparing certified copies of the priority document and e-transmission through WIPO-DAS. The new Regulations allow only electronic filing of all the records to digitize the operations and is a step towards the paperless workplace. Moreover, the requirements for filing requests for the expedited examination have been applied to small entity applicants; female applicants and applicants qualified under a patent application pursuant to an agreement with an Indian Patent Office and a foreign patent office. The new rules also provide various government entities that will benefit from the expedited examination.[18]

4.      Amendment to Form 27: Statement on working of Patents

While the current form calls for extensive information on the function of patent holders and their licensees, the proposed amended version dispenses with a lot of this information, including the quantity of the patented product manufactured in India or imported in India, country wise details of the worth and quantity of the patented product imported into India, etc. The revised Form also imposes a 500-word arbitrary word limit for the statement of justification for not working the patent.[19]

CONCLUSION

There has been a considerable initiative taken by the government, the legislature and the judiciary. With the Indian judiciary exhibiting enthusiasm for and dedication to upholding IP rights, IP owners have been more vigilant in defending their rights by all means. Though the benefits of specialized IP courts are still under consideration in India. Although more needs to be done in regards to the criminal justice system, the Indian civil system is changing everyday for the protection of IP rights. While recent substantial advances have reaped considerable rewards for IP owners in India, there is still a long way ahead.

The post New Dimensions in IP Industry appeared first on Legal Desire Media and Insights.

Media has always been a leader in communicating with the people, regardless of any particular form of media. Media should be careful in evaluating before posting the news on the public domain and should leave no question as to its truthfulness. It is the media’s moral duty to serve the nation with accurate and truthful news. If malafide information or the slightest doubt arises from the telecasted information, it would have an adverse effect. The media finds it their constitutional right to report and inform the public about all issues of ‘public interest’ as envisaged in Article 19 of the Constitution under which the ‘freedom of the press’ is incorporated. On the other hand, the people under Article 19 have the ‘right to information’ or ‘right to know’.

Celebrities’ right to privacy is being persistently violated of misappropriation by others in many respects. With the exponential growth of media, consumerism, and celebrities, the protection of celebrity rights in India needs additional focus and relevant legislation. This article also deals with remedies available to prevent such misuse of celebrities’ names, work, signature, etc.

MEDIA

The word media, which is the plural of medium, refers to the means of communication by which we disseminate news, music, films, education, promotional messages, and other content. This comprises of newspapers, journals, tv, radio, mobile, twitter, fax, etc. It describes the different ways in which we communicate within society. Media can be divided into two categories –

        i.        Print Media includes many kinds of media like newspapers, magazines, journals, articles, and records. This is the oldest form, and a significant proportion of the population still uses it in spite of deprivation after the advent of the Internet.

      ii.         Broadcast Media applies to radio and tv, which joined the picture in the early and mid-20th centuries respectively. Many viewers now collect their news from tv and radio outlets- but it won’t be long until internet media seize control.

The media plays a critical role in establishing molding and relating the public opinion of every democratic society. Today the media affects almost every part of our public life. Media plays a key and really significant function in enlisting and informing the population. Knowledge of numerous rural development schemes, the usage of the media could propagate the dissemination of family planning. Media has a great job of bringing social change from entertainment to all the ongoing issues in whatever topic it covers.

In Romesh Thappar v. The State of Madras, it was held that the freedom of speech and expression includes freedom to propagate ideas, and the same is ensured by the freedom of circulation.[1] Therefore, freedom of speech and expression under Article 19 include freedom of media as well. But this right is not an absolute one and thus, reasonable restrictions under Article 19(2) can be imposed by the law.[2]

CELEBRITIES

“A celebrity is someone who works hard all his life to be known, and then wears glasses to avoid being recognized.” – Fred Allen.

A celebrity may be described as ‘an individual who has become a popular figure through his success, popularity or manner of life, or by taking up a profession that gives the public a genuine interest in his acts, affairs and character’.[3] A celebrity is an individual that has achieved substantial popularity over the course of his life and is well recognized to the public and the media. The term celebrity has been derived from a Latin word ‘celebritatem’ which means ‘the conditions of being famous’. Public opinion is the principal criterion for deciding whether or not an individual is a celebrity.

CELEBRITIES RIGHTS

Celebrity rights as the name implies, apply to freedoms linked to an individual’s personality. This is intricately linked to a person’s right to privacy and properties. This is especially important to celebrities, as different businesses may easily exploit their names, pictures or even voices in numerous commercials to raise their profits. Celebrity rights are an issue that has not earned the recognition it needs in our country. With exponential development in the country’s electronic media over decades, it has become possible to introduce an individual’s private life into the public domain. There has been a significant rise in cases where celebrities’ privacy rights have been compromised and breached by the general public and the media. The rights enjoyed by celebrities are a bundle of rights including rights of personality, rights of publicity, and rights of privacy.

       I.            Personality or Image Rights

Personality Rights imply a person’s right that relates to his/her personality. The personality of an individual is a way by which one person recognizes another and determines his or her position within society. This may be covered under a person’s right to privacy or as a property of a person. This is important for celebrities because people use their name or a photograph to advertise their trade and this influences their sales. In India, there is no legislation or regulation per se that protects the freedom of personality. Nevertheless, India has already started to recognize such rights by several significant decisions nowadays.[4]

Till the Supreme Court issued the judgment of Justice K. S. Puttaswamy (Retd.) v. Union of India[5] in 2017, personality rights were largely drawn from the common law concept of ‘passing off’, similar to that of the UK. Now, such rights have been raised to the status of constitutional rights with the 2017 decision of Justice Sanjay Kishan Kaul provided this rights fundamental validity by stating:

“Every individual shall have the right to exercise control and protection on their own life and reputation as presented to the world and monitor the commercial usage of their name. It also ensures that an individual will be allowed to prevent anyone from using his/her photograph, name and other personal information for commercial usage, without his / her permission.” (Para 477)

Further, in ICC Development (International) Ltd. v. Arvee Enterprises and Anr.,[6] it has been held as follows

“The right to publicity arises from the right to privacy which may be in an individual or in the personality of an individual such as his name, personality attribute, signature, voice, etc. No person can be monopolized. The right to publicity vests in a person and he alone has the freedom to benefit from it.” (Para 14)

Thus, while there is no law related to the right of personality in India, but the Court’s purpose has always been to recognize and preserve these rights. Thus, only the unlawful and illegal use of personality rights with unjust intent is punishable by law. 

   II.            Privacy Rights

In sharp comparison to the right to publicity, the right to privacy is the right to be left alone and not to have one’s identity reflected openly without consent. What a right empowers a public figure to claim for privacy infringement, to obtain damages and injunction against someone who violates the personality rights of the public figure. The right to privacy is based on the principle of individuality. Celebrities try to keep their personal life as a secret. Indian constitution acknowledges the right to privacy as a constitutional right under Article 21. The said right is not expressly mentioned anywhere in the Constitution. The four separate freedoms protected by the right to privacy rubric are[7]:

1.      The right to avoid public disclosure of private rights.

2.      The right to intrude upon a person’s isolation and to prevent some sort of prying in a person’s private affairs.

3.      Avoid fake light publicity, and

4.      Curb misappropriation of the name and likeness of an individual.

Perhaps the Court accepted the Right to privacy of celebrity for the first time under in

R. RajaGopal v. State of Tamil Nadu[8], the court held that no one could publish anything regarding families, marriage, procreation, motherhood, childbearing, and schooling among others without the individual’s permission. If he did so, he will breach the individual concerned right to privacy, and will be liable for compensation in an action (Para 28). This is the first case in which the court ruled that the right to privacy will be infringed whether, for example, the identity or appearance of an individual were used without his permission, for advertisement or non-advertising purposes or for some other matter. (Para 9)

The right of celebrities to make choices about the exposure levels they wish to accept and to take advantage of exposure if they choose to is a well-recognized concept in the West. However, in India, the right to privacy resulting from declarations of judicial pronouncements is not equipped to protect the rights of celebrity.[9]

In the landmark case of Justice K. S. Puttaswamy (Retd.) v. Union of India[10] in 2017, the hon’ble Supreme Court held that-

“The right to privacy is protected under Article 21 as an essential component of the right to life and personal liberty and is one of the freedoms secured under Part III of the Constitution.”

People of high profile, dignitaries, persons in authority, celebrities, etc. are sometimes at the receiving end due to reckless allegations, mostly made anonymously, which could mar their respective careers and wipe out their unnecessary involvement in cases.[11] The scrutiny of public figures by media should not also reach a point where it leads to harassment to the public figures and their family members and they must be allowed to live and lead their life in peace.[12]

“It must be acknowledged that the freedom of the press and the common law right to the privacy to protect personal information represent fundamental civilized principles. Neither can be allowed full effect without constraining the other. The right to privacy that sits at the epicenter of an abuse of trust action must be weighed against the freedom of the media to supply the public with information. Contrary to that, the media’s freedom to transmit knowledge to the public must be weighed against the dignity that must be accorded to private life.”[13]

“When a balance is to be found between the freedom of the press and an individual’s right to privacy, when one is put against the other, the issue as to what can be of supreme arises. While considering the right to freedom of expression and speech pursuant to Article 19(1)(a), the Apex Court held that such right should not be abolished unless the situations created by allowing for freedom are pressing and the interests of the community are at stake. The court also ruled that it is not necessary to reconcile the two priorities as though they are of equivalent weight.”[14] (Para 159)  

III.            Right to Publicity or the Merchandising Rights

The International Trademark Association defines the Right to Publicity, as “a form of intellectual property right that protects against the misuse of a person’s name, likeness and perhaps other personal identification for commercial benefit.”[15]

The right to use the economic value of the fame and name of a celebrity is known as publicity rights. Publicity right is the ‘natural right of every human being to regulate the commercial use of his/her identity’.[16] The right to exploit the economic value of an individual’s name and fame is referred to as the right of publicity for claiming this right, it is necessary to establish that fame is a form of merchandise and any act that impedes those rights considered to be unfair commercial practice.

In Titan Industries Ltd. v. Ramkumar Jewellers[17], the Delhi High Court observed that-

“When a celebrity’s image is used in advertisements without their consent, the argument is not that no one can commercialize their image but that the power to decide when, and how their identity is used should be vested in the celebrity. The right to regulate the commercial use of human identity is the right to publicity.” (Para 14)

In the case of Ali v. Playgirl, it was held that “a distinctive feature of the common law right of publicity is that it recognizes the commercial value of the picture or representation of a prominent person or performer, and protects his proprietary interest in the profitability of his public reputation or persona.”[18]

Sourav Ganguly v. Tata Tea Ltd., where Sourav Ganguly found himself extremely disturbed when he learned that Tata Tea Ltd., where he was appointed as a manager, was marketing the 1-kilo tea packet by giving consumers the opportunity to compliment Sourav with a postcard placed inside each tea box. This was done to encourage the selling of its tea packet on the Indian market where Sourav had gained significant prominence. The court ruled in Sourav’s favor, accepting his prestige and popularity as his own intellectual property.[19]

Moreover, the Labour Theory as propounded by John Locke provides that a thing (res) is the property of the person who produces it or brings into existence.[20] Similarly, a celebrity deserves all the rewards he could earn because he worked hard, and created a worthy persona.

However, the law with this regard is still not fairly developed, especially in India, i.e. advertising /merchandising rights of celebrities. Courts in the various international countries have taken a different approach to support this right, but no universal justification has yet been crystallized.

STATUTORY FRAMEWORK

Certain legislations where celebrities can seek refuge are-

1.      Trademark: A trademark is a mark which can be depicted graphically and which can differentiate one person’s products or services from those of others as provided under Section 2(1)(zb) of the Act.[21] The name and likeness of it can also be conveniently registered and used as a trademark by the celebrity.[22] In this way, trademark protection allows the celebrity to control its name, image and similarity. Many celebrities have started to register their name and likeness as trademarks to avoid misappropriation by others. The names of Akshay Kumar, Amitabh Bachan, Sachin Tendulkar, Kajol, Shahrukh Khan, A.R. Rehman, Sanjeev Kapoor and many others were registered as trademarks.[23] Further, under Section 2(m) the definition of mark includes names as well. Celebrities may also invoke Section 14 of the Trademarks Act to prevent illegal use of their names. Section 14 of the said acts forbids the registration of a mark which falsely indicates a relation with a living individual or a person who died to register the mark within 20 years of the date of application.

The laws grant the registered trademark holder enough protection. Will this mean that those who have not declared their trade mark have the right to do so? Actually, that is not true. Those that have not registered a trade mark can also prohibit the other individual from using the same or equivalent trade mark through the Doctrine of Passing Off.

2.      Passing Off:Pursuant to common law, the passing off rule in India is specifically designed to protect the goodwill linked to unregistered trademarks. One should not profit from another person’s work and this is based on the basic concept of law. Passing off is covered under section 27(2), 134(1)(c) and 135 of the Trademarks Act. The remedies available as regard to Passing off are Injunctions, Damages and Compensation or Account of Profits.

In July 2008, a legal notice released by BCCI  to Kothari Products Ltd for illegal and unauthorized usage of Indian cricket images and photos in its Pan Parag commercial.[24]

Rajat Sharma v. Ashok Venkatramani, the advertisement clearly takes digs on famous TV journalist Rajat Sharma in the guise of introducing the ‘anchor-less’ news channel Zee Hindustan It refers to Rajat Sharma, India TV’s chairman and editor-in-chief, and suggests that people will no longer watch his popular long-running show Aap Ki Adalat. Such advertisements prompted Mr. Sharma to file a case against Zee Media for a permanent injunction. The Court affirmed well-known principles of celebrity rights and their right to publicity. The finding was that the aforementioned advertising was prima facie unconstitutional and that the balance of convenience was in the plaintiff’s favor. The court restrained Zee Media from publishing any advertisements in the print media bearing Rajat Sharma’s name.[25]

3.      Copyright: A copyright grants the owner an exclusive right to reproduce, issue, perform, adapt, translate and store the work so protected by copyright any forms. Copyright can be done to protect Original literature, dramatic, musical and artistic creations, videos for the cinematography, and sound recordings.[26] The Copyright Act does not directly define the term ‘Celebrity’, but it does define a ‘Performer’ under section 2(qq) of the Copyright Act, 1957. Further, section 38 and 57 of the said act provide for the remedy to the plaintiffs. All the manifestations of a celebrity in the context of an original literary, dramatic, musical and artistic work; or in cinematograph/ sound recording receive automatic protection under the copyright law. A famous fictional character may generate immense economic profits if appropriated into a merchandising commodity.

4.      Defamation: When celebrity information is included in a story or image in such a way as to portray the celebrity in a false light, this can be defamation. It is a criminal offence under section 499 of the India Penal Code, 1860.  The law gives every individual the right to uphold and protect his reputation in a community. The right to reputation is recognized as a personal right inherent in any individual.

The appellant Sampat Pal lodged a complaint seeking a permanent injunction and damages in Delhi High Court claiming violation of privacy and defamation of the claimant. The suit was filed to restrain Sahara One Media & Entertainment & Ors. for which she claimed her life story was adapted into a film. She said she was defamed and humiliated by the depiction of the characters in the film along with the other leaders of the organization. She further alleged the film defamed her and portrayed her work with swords and sickles in a bad light and horrifying manner. The Delhi High Court issued an order restricting the release of the film until the next hearing. The film was published with a notice explaining that it has little to do with Sampat Pal’s life and activities and with her organization.[27]

Practicing Delhi High Court Advocate, Mohit Singh has placed a defamation legal notice on India Today Group Chairman, for ‘demeaning’ the Indian Cinema artist’s tragic death of Sushant Singh Rajput. India Today Group’s Aaj Tak news channel flashed a Headline, supposedly comparing the actor’s death to a “hit-wicket” during a cricket match. “According to the words used, the act of committing suicide is a shameful act and one that should be looked down on. Such acts of public platforms, particularly those with a high profile, have the potential to inflict unimaginable pain to a large part of the Indian community”, the notice said.[28]

Media intrusions into the personal life of individuals near to celebrities, i.e. spouses, children, parents, and other friends and family, have also expanded privacy violations to the celebrities.[29] 

The Press Council of India’s Norms of Journalistic Conduct

Media serves as a bridge between people and government, as well as a very strong instrument able to make and destroy public opinion. It can change expectations, or elicit emotions. That is why it won popular trust. Press is what governs the hearts and minds of citizens by the diverse forms of magazines, media, and movies.

1.      Caution against defamatory writings

Newspaper should not print information that is defamatory or libelous, also there should be ample reason/evidence to conclude it is accurate and its publishing should be for the greater interest, following due diligence. Freedom of the press does not grant a publication a license to malign a government figure or to print fraudulent and defamatory writings.

2.      Criticism of Public Figures

An actor or musician performing on a public stage submits his work to the audience’s judgment and as such the remarks of the audience with strong relations with the performance of artists cannot be deemed defamatory. The writers, however, should refrain from writing something that could be viewed as throwing a cloud on the personal reputation of the artist remotely.

3.      Privacy of Public Figures

Right to privacy is a fundamental right and is inviolable. The degree of privacy also varies. The public person who works under the public eye as a public official cannot assume the same degree to be given, as provided to a private individual. His acts and behavior as they are of public interest can be brought to public attention via the media. However, the press has a reciprocal obligation to insure that knowledge regarding these activities and the public person’s actions of public interest is collected by reasonable means, is duly checked and then correctly published.

4.      Right to Privacy

The public figure family is not a legitimate journalistic subject, more so if the children are included in its coverage. The Press shall not intrude or violate an individual’s privacy unless it is outweighed by legitimate public interest. Also, the principle of PRIVACY includes subjects pertaining to a person’s residence, family, identity, religion, health, orientation, personal life and private affairs.

5.      Right to Privacy – Public Figures and the Press, 1998

There is a conflict between the privacy of the public person and the right of the public to learn about his/her personal actions, behavior, and traits characteristics, impeding or harming the public interest, the latter being forced to give in. The specific guidelines described above may strike a compromise between the freedom of the press to obtain information and the right to privacy of public persons.

INTERNATIONAL CONVENTIONS

1)      Articles 9 to 14 of the TRIPS Resolution, 1994, deals with copyright and related protections. In specific, Article 14 provides such freedoms for phonogram producers, broadcasting rights for live performances and protects the freedom to restore, replicate, transmit and re-broadcast through electronic means and to communicate to the public. India is a signatory to the 1994 TRIPS Agreement and incorporates all the features of the above privileges in its copyright laws.[30]

2)      Another big move in securing allied artist rights was the WPPT, 1996. The WPPT concentrated mostly on preserving the interests of performers and phonogram manufacturers against violating their privileges throughout the digital age, because there was a legislative void throughout this area. The treaties also acknowledged the fixation of output on the visual media and its dissemination and communication. In respect to the privileges of performers, other economic rights were bestowed on performers, that is, the right to duplication, sale and leasing as well as moral rights.[31]

CONCLUSION

The laws in effect do not authorize a celebrity’s identity to be used without express permission from the celebrity. The same was reaffirmed by different courts. Protection is obtained under legislation pertaining to privacy, tortuous liability and intellectual property rights. A celebrity’s name, face, and appearance has a market meaning that is connected to him because of his work. The commercial exploitation that derives an economic benefit is his right and no unauthorized person can misappropriate the same and benefit unjustly from it. I think it is important for legislators to enact new celebrity rights legislation that would enforce, explain and include safeguards against the abuse of celebrity rights and at the same time grant them privacy. Also, the best way for companies to protect themselves against legal actions is to get properly written approvals from celebrities before using their public images, names, likeness and the like. In the absence of these signed permissions, it is strongly advisable to incorporate adequate legal disclaimers with a view to reducing liability in the case of legal disputes.

The post Privacy, Celebrities and the Media appeared first on Legal Desire Media and Insights.

Democracy is generally described as for the people, by the people and of the people. Democracy and freedom go hand in hand and the media plays a key role in Indian democracy. After executive, legislature, and judiciary, media is seen as the fourth pillar of a democratic society. Media holds the public awake and the reality that it has been one of the main weapons of societal reform is not disputed. In a democratic set-up, the media enhances the democratic norms and principles, and therefore, accelerates the speed of development.

Media acts as a link between citizens and government, as well as a very powerful tool, capable of making and breaking the opinion of the humans. It is capable of swinging perceptions or evoking emotions. That’s why it has earned public trust. Media is what rules people’s hearts and minds through its various means of newspapers, television, and cinema.

Without free press, democracy can’t be functional. Our Constitution does not specifically provide for freedom of the press, but the Court has held that this freedom is included in the “freedom of speech and expression” guaranteed by Article 19.[1] The freedom granted under Article 19(1)(a) is known as natural rights or common law rights. Such rights are not absolute.

India currently ranks at an awful 142nd in the World Press Freedom Index, 2020[2], which in the year 2019 was 140th.[3]

The Press Council of India

The Press Council of India was first established by the Parliament of India in 1966, recommended by the first Press Committee. It aims to maintain the independence of the press and to preserve and develop the quality of India’s newspapers and news agencies. Presently, the council’s work is regulated by the Press Council Act, 1978. This is a statutory, quasi-judicial entity that serves as a watchdog of the press. It adjudicates allegations against and by the press for violations of ethics and violation of press freedom respectively.

The Press Council Act significant functions are to[4]–

a)      Helping newspapers operate independently.

b)      Develop a code of ethics for the news media and journalists.

c)      Help maintain ‘high public-taste standards’ and foster responsibility among citizens.

d)     Review developments that are likely to limit news flow.

e)      Studying foreign newspapers, their circulation and their impact, etc.

The Press Council of India’s Norms of Journalistic Conduct[5]

“Great editors keep the erasers and do not hesitate to use them when errors are pointed out.[6]

Each profession should have a code of conduct to ensure its progress alongside social accountability. The basic purpose of journalism is to represent the citizens in a reasonable, factual, impartial, balanced and responsible way with reporting, viewpoints, views and knowledge on subjects of public concern. Towards this end, maintaining high professional standards is a major responsibility of both the author and the editor. Journalists, on the one side, should be diligent in safeguarding press freedom and, on the other hand, they must ensure that this right is used and rarely misused. Under the provision of Section 13(2)(b) of the Press Council Act, 1978, the Press Council of India has established a package of guidelines for promoting the functioning of the media.

Salient Features of the Press Council of India’s Norms of Journalistic Conduct

      I.            Part I: Principles and Ethics

1.      Accuracy and Fairness

a.       The Press shall prevent the publication of inaccurate, baseless, or misleading content. It should report from both sides of the central issue or subject.

b.      While revealing the wrongdoing these findings must be backed up by facts and evidence.

c.       The newspaper should keep in mind that it is their job to compile the news and set it in perspective but not to make the news.

d.      Freedom of expression does not grant newspapers the freedom to publish false information, except on a lighter way, regarding an organization or person.

e.       The newspaper should not misquote any Leader’s statements.

2.      Advertisements

a.       No advertisement which directly or indirectly promotes the production, selling or consumption of cigarettes, tobacco products, wine, beer, liquor, and other intoxicants shall be published.

b.      Newspaper shall not print advertisements that aim to harm or injure any community’s religious feelings.

c.       Newspapers while posting advertisements should specify the amount they received.

d.      Newspaper shall not print any advertising designed to transmit as news stories using the names and images of the Hon’ble President and Prime Minister of India.

e.       Newspapers should bear a note of warning for matrimonial ads carrying the following note.

“On 25 February 2008, the Government published a notification prohibiting surrogate ads in the newspaper, online and outdoor media by liquor firms.”[7]

The High Court of Delhi in Smt. Harjeet Kaur v. Shri Surinder Pal Singh ordered the Press Council to order the newspaper to print classified / matrimonial ads by recommending them to print the aforementioned Warning Notice in their newspapers alongside it.[8]

3.      Caste, Religion or Community References

a.       Newspapers shall be cautioned against the usage of the term ‘Harijan’ as opposed by others and shall use the term Schedule Caste as alluded to in Article 341.

b.      The caste or community shall not be used to describe an accused or a victim if the same has nothing to do with the offense or identification of any accused or proceeding.

c.       Bringing the problems of the weaker sections of society to general attention as they are the watchdogs on behalf of the weaker parts of society.

d.      It is hoped that the press would take advantage of its influence to foster and contribute to preserving communal harmony.

A petition was filed at the Supreme Court by a Jamiat Ulama-i-Hind and other minority groups requesting direction from the Center to prevent the media from communalizing the Tablighi Jamaat Incident linked to COVID-2019 outspread. In relation to the Tablighi Jamaat conference held in the Nizamuddin Markaz district, the petitions had claimed that some parts of the print and electronic media were promoting prejudice and communal hatred. The petition claimed that “the Tablighi Jamaat’s tragic event was used to demonize and condemn the entire Muslim culture.” It may cause communal hatred. The Supreme Court has directed the Centre and the Press Council of India to file a reply.[9]

4.      Caution against defamatory writings

a.       Newspaper should not publish anything that is manifestly defamatory to any person, dead or alive, unless there is adequate evidence and proper care and verification has been done, and that its dissemination is for the public benefit.

b.      Being a custodian of the public interest, the Press has the responsibility to expose instances of corruption and irregularities in public institutions, but these should be founded on irrefutable and authenticated evidence.

Actor and former MP Divya Spandana has filed a defamation lawsuit against Suvarna News 24×7 and Asia net news. The lawsuit against the channels was lodged over two stories broadcast on the channel involving her role in IPL cricket betting. The court found that the defendant’s conduct was in complete breach of journalistic ethics and intentionally tried to undermine the plaintiff’s reputation.[10]

5.      Right to Privacy

a.       The Press shall not interfere or invade an individual’s privacy, except when it is overweighed by genuine public interest. In reports which are likely to stigmatize women, particular caution is essential.

b.      While reporting offenses involving rape, abduction, or kidnapping of females or child sexual assault or raising questions concerning women’s chastity, personal character, and privacy, the names, photographs of the victims or other information leading to their identity should not be published.

Other related provisions-

The child has right against intervention from libel or slander of privacy, family, home, etc.[11]

Section 228A penalizes revealing of the victim’s identity in offences like Section 376 to section 376E of the Indian Penal Code, 1860.

In A.K Asthana v. Union of India and Anr., the Delhi High Court directed to constitute a committee to give suggestions regarding Media Reporting on Children’s.[12]

6.      Caution regarding Judicial and Legislature Proceedings

a.       Except if the court sits ‘in-camera’ or orders otherwise, it is available to a publication to publish the judicial proceedings in a fair, correct and reasonable manner.

b.      Newspaper as a matter of caution shall not comment on any evidence received during investigative journalism nor should they reveal or comment on the confession of the accused.

c.       While newspapers may make reasonable criticism, in the public interest, of a court’s judgment for the public good; they shall not cast derogatory aspersions on the judge, or personal bias. Nor should they scandalize the trial or the courts as a whole, or bring personal allegations against a judge with a lack of skill or dignity.

d.      The proceedings of House of Parliament or the State Legislatures be reported faithfully and regarding this, the Newspapers cannot be liable for any civil or criminal proceedings unless it is proved it was done with wrong intentions.

Other related provisions- In addition to this, Article 118 of the Constitution of India layout that each House of Parliament can make rules and regulations, in compliance with Constitution provisions, regarding its conduct and procedure of its business.[13] Also, Article 361A provides for the protection of publication of proceedings by the journalist of the House of Parliament or the State Legislatures.[14] Section 327 of the Code of Criminal Procedure, 1973, it is not lawful for any person to publish or print any matter related to proceedings of the court without the court’s permission.[15]

“The Rules formulated under Article 118 of the Constitution of India thus specifically permit the publication of parliamentary proceedings.” Aside from publication of the proceedings of the Parliament, including the reports of the committees, now, they are also permitted to be broadcast on electronic platforms. The publications of the reports are not only permitted, but also are being encouraged by the Parliament. “The general public is eager to know about the parliamentary proceedings and reports which are steps towards the governance of the country.”[16]

7.      Covering Communal Disputes/ Clashes

a.       Upon thorough examination of the truth, views or statements concerning political or religious disputes shall be written and addressed with appropriate care and restraint in a manner conducive to the development of an environment conducive to the public’s good, peace and harmony. It’s necessary to prevent dramatic, provocative and disturbing headlines.

Other related provisions- This is also an offence under Section 153A, 153B, 228A and 505(2) of the Indian Penal Code, 1860.

8.      Investigative Journalism

There are three fundamental components of the investigative reporting-

a.       It must be the reporter’s work, not of others which he reports;

b.      For the reader the topic should be of public importance;

c.       As a norm, the investigative writer will focus his article on information that was investigated, discovered and verified by himself and not on speculation or imitative proof that a third party has gathered.

d.      The investigative journalist should achieve an appropriate balance of transparency and secrecy.

e.       The reporter’s tone and language should be sober, decent and dignified, not unnecessarily offensive and barbed.

9.      Crass Commercialism

a.       Newspapers are entitled to ensure, boost or strengthen their financial stability through reasonable means, but it should not be in a manner repugnant to high ethical principles and good taste, the Press shall not indulge in crass commercialism or unseemly cutthroat commercial competition with its rivals.

10.   Photo Journalism

a.       When carrying out their duties, photojournalists and other visual news producers should be far more cautious and vigilant. Therefore, they should ensure that their reports are always in the public interest, fair, accurate, impartial, sober and respectable, in line with the high standards of journalism.

b.      While covering terrorist attacks, communal riots or other acts of violence, do not display mangled bodies or other images that cause terror or evoke communal, or sectarian passions. Also, they should not portray incidents of violence, armed robbery and terrorist attacks in a way that glorifies their conduct.

During 26/11 terrorist attacks, the Chief Justice of India, K G Balakrishnan, asked the media to be more responsible and not end up being a barrier to security forces operations. Terrorists, he thought, may have exploited the coverage to their benefit.[17] Even R V Raveendran, hon’ble Supreme Court Judge, remarked that the media would not be permitted to live reporting of such a terror attack in any other country.[18]

11.  Obscenity and Vulgarity to be avoided

a.       Newspapers/journalists shall not publish anything obscene, vulgar or offensive to the good taste of the general public.

b.      Newspapers shall not display vulgar or lewd advertisements by depicting a woman in a nude or lewd stance.

Other related provisions- No person shall publish, cause to be published, or arrange or participate in the publication or exhibition of any advertisement containing in any way indecent representation of women.[19]

The Indian Penal Code does not define the word ‘obscene’ and this delicate job of how to distinguish between that which is artistic and that which is obscene has to be performed by courts.[20]

12.  Pre- Publication and Verification

Any report or article or complaint etc. should be checked with due care from other authentic sources for its accuracy in the facts.

13.  Media and Judiciary

Media and justice are two vital pillars of democracy, complimenting one another on the goal of a successful democracy. Fair trial must necessarily prevail in a conflict between a fair trial and freedom of speech, because any compromise of a fair trial for an accused will cause immense harm and defeat the delivery system of justice. Therefore, media person should be adequately trained and provided clear information regarding the workings of the courts and the judicial processes.

In Jessica Lal Murder’s case, the media took up the task of administering justice and seeing that the suspect is prosecuted, media conducted candlelight vigils and public polls. The media have raked up the accused’s past history, including photographs of the accused in the bars and pubs after he was acquitted and how he celebrated after his acquittal. The Apex Court observed that to avoid interference in the administration of justice the freedom of speech must be used carefully and cautiously (Para 149). When media court hindered a fair investigation and prejudiced the accused’s right of defense that will be a transgression to justice.[21] (Para 148)

The Law Commission of India in its 200th report, entitled “Trial by Media: Free Speech and Fair Trial Under the Code of Criminal Procedure, 1973,” deals in detail with several aspects of the rights relating to freedom of speech, freedom of the press and freedom of fair trial. The Chairman of the Law Commission, Justice M. Jagannadha Rao, says that the subject was taken up by the Commission suo motu, ‘bearing in mind the extensive prejudicial coverage of crime and information on suspects and accused in both the print and electronic media.’[22]

CONCLUSION

Limitations on media coverage must be set. Freedom of speech is a fundamental right, an important anchor of democracy, but uncontrolled use should not be made of it. Media is the most popular means of conveying public sentiment and holding the people updated as well. Therefore it is necessary for the media to behave with a sense of obligation. The media should keep their views objective, free from prejudice or partiality. It should seek to explore every possibility and point of view. The media is unquestionably a cornerstone of democracy.

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