Delhi High Court’s Approach to Intermediary Liability in Facebook Inc Vs Surinder Malik & Ors
1. Background of the Dispute
The proceedings arise out of a civil suit filed by Mr. Surinder Malik seeking protection of his registered trademark ‘DA MILANO’ against alleged misuse on social media platforms. The action was instituted as a suit for:
- Permanent injunction to restrain infringement of trademark;
- Relief against passing off; and
- Relief under
Section 74of the Information Technology Act, 2000 to secure protection of the mark ‘DA MILANO’ in the online environment.
The Plaintiff asserted ownership over the mark ‘DA MILANO’ in several formats, including word mark, label and logo forms.
In the suit:
- Defendants No.1 to 4 were alleged to be parties who had advertised and offered for sale goods bearing the mark ‘DA MILANO’ through posts on Facebook and Instagram.
- Facebook Inc. and Instagram LLC were impleaded as Defendants No.5 and 6, respectively, so that any content on their platforms infringing the Plaintiff’s mark could be identified and taken down.
The core contention was that infringing listings and advertisements, hosted on these platforms by third parties, were violating the Plaintiff’s trademark rights in ‘DA MILANO’.
2. Stand of Facebook and Instagram
Facebook Inc. and Instagram LLC did not dispute the Plaintiff’s rights over the mark ‘DA MILANO’. Instead, they placed reliance on their legal status as intermediaries under the Information Technology Act, 2000.
Their primary submissions were:
- They are intermediaries within the meaning of the IT Act.
- By virtue of
Section 79of the IT Act, they claimed exemption from liability for third-party content, subject to satisfaction of statutory conditions. - They were not playing any active role in the creation or uploading of the allegedly infringing content; rather, third-party users independently posted such material.
Accordingly, the platforms sought to distance themselves from direct liability and emphasised their limited obligation, if any, to act once notified in accordance with the statutory framework.
3. Proceedings Before the Trial Court
The Trial Court passed an order dated 19.03.2019, directing Defendants No.5 and 6 (Facebook and Instagram) to appear in person for recording their statements under Order X CPC.
Key portions of that order show:
- Various applications were pending, including amendment applications under Order 6 Rule 17 CPC and an application under Order 1 Rule 10 CPC.
- The Trial Court noted that, in light of the issues in controversy, it required the personal presence of the parties for examination under Order 10 CPC.
- The matter was adjourned to 01.06.2019 for further proceedings.
Facebook and Instagram then moved an application seeking:
- Recall/modification of the direction for personal appearance; and
- Exemption from the requirement of appearing in person.
On 01.06.2019, the Trial Court again insisted on their personal appearance, observing that:
- No satisfactory reason had been placed for seeking exemption;
- Their attorneys were also not present; and
- The Court required their examination for clarifying issues arising from the pleadings.
The applications were kept pending, and the direction for personal appearance was reiterated.