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Category: High Court

  • Karnataka High Court rejects plea to regulate online content under Cinematograph Act

    Karnataka High Court rejects plea to regulate online content under Cinematograph Act

    MUMBAI: The films, serials and other multimedia contents transmitted, broadcast or exhibited through internet platforms an donline streaming platforms like Hotstar, Amazon Prime, Netflix and Alt Digital, cannot be regulated under the Cinematograph Act, 1952. The Karnataka High Court on Wednesday held the order while rejecting a plea made in a public interest litigation (PIL), according to a report in The Hindu.  

    The petition was filed by a Bengaluru resident Padmanabh Shankar which was heard by a division bench comprising chief justice Abhay Shreeniwas Oka and justice Mohammad Nawaz.

    The division bench said that he act of exhibition of films, serials and other content perhaps amounts to transfer of files based on requests by users as per  the concept of internet and its operation. Hence, transfer of files or films, serials through the internet can not come under the purview of Cinematograph Act.

    However, the bench said that it hopes that the union government will find a solution in public interest within the four corners of the law if the petitioner submits a representation seeking regulation of content of online streaming platforms.

  • Dish TV vs Prasar Bharati: DD Free Dish cannot use word ‘Dish’, says Delhi High Court

    Dish TV vs Prasar Bharati: DD Free Dish cannot use word ‘Dish’, says Delhi High Court

    MUMBAI: The Delhi High Court on Tuesday granted an injunction to direct-to-home (DTH) operator Dish TV (plaintiff) against Prasar Bharati (defendant), preventing the public broadcaster from using the word 'Dish' for its free-to-air DTH platform DD Free Dish. The defendant was handed three months’ time to inform its subscribers of the new name, so as to not cause any confusion.

    Terming it as prima facie case of infringement, the single bench of Justice Sahay Endlaw refused to accept the pubcaster’s claim of publici juris.

    The plaintiff had instituted this suit for permanent injunction restraining the defendant from infringing the trade mark “Dish TV‟ of the plaintiff and from passing off the defendant’s services as that of the plaintiff by adoption of the name/mark “Free Dish‟ and for ancillary reliefs.

    The plaintiff had argued that the world ‘Dish’ was first appropriated by them and is a key component of its trademark. The defended opted for a logo similar in nature, even containing the dish that was a central to the Dish TV logo.

    The defendant refuted the charge of similarities in the logo and argued that the exclusive right to the Dish logo cannot be claimed by anyone.

    The court was not in agreement with the defendant’s argument of the word “Dish‟ being generic to DTH service or publici juris and/or common to the trade of DTH service for it to be said that adoption thereof by plaintiff for its DTH services cannot prevent others providing same service from using the same for the reason of its being essential for them for describing their service.

    “As far as the contention of the counsel for the defendant regarding public interest is concerned, it cannot be lost sight of that the defendant, after ten years changed the name of its service from DD Direct+ to DD Free Dish. It is not the case of the defendant that in doing so, any such consequence followed. The defendant has also not disclosed the need for such change. There is no reason for the defendant to now, upon being asked to make the change instead of affecting the same voluntarily, suspect any such harm to the public. Moreover, the said aspect can be taken care of by providing sufficient time to the defendant to make its customers / subscribers aware of the change including on its own telecast,” the order read.

    “Rather, I am dismayed that the defendant, a public sector enterprise, indulged in using another’s trade mark and in spite of the plaintiff objecting thereto, refused to act reasonably. The same is not expected of a public sector enterprise which according to the proclaimed litigation policy of the government is not to be indulged in. It is at least now expected that the officials responsible for conduct of the business of the defendant will bestow attention thereto and take a call, whether it is worthwhile to contest this litigation, obviously at the cost of the exchequer,” Justice Sahay Endlaw further stated.

  • Tata Sky’s final arguments in TRAI tariff order matter listed for 19 July by Delhi HC

    Tata Sky’s final arguments in TRAI tariff order matter listed for 19 July by Delhi HC

    MUMBAI: The Delhi High Court on Thursday adjourned the hearing of the petition of top DTH operators Tata Sky, Airtel Digital TV and Sun Direct, and broadcaster Discovery India Communication challenging Telecom Regulatory Authority of India (TRAI) and its new tariff regime to 19 July. according to sources close to the development, he DTH player Tata sky will conclude its argument on the same day. 

    During the hearing on 2 May, the regulatory body argued partly in the court. Before that, the last two hearings held on 11 April and 25 April were adjourned without any significant development.

    In the beginning of April, Discovery India concluded its arguments. The matter is being heard by Chief Justice Rajendra Menon and Justice V Kameswar Rao.

    Notably, the extended deadline for consumer migration under the new regime expired on 31 March. While TRAI has repeatedly said most consumers have moved to the new regulatory framework with a reduction in cable bills, several reports have claimed otherwise. In the last two weeks, TRAI also sent directives to several distribution platform operators across the country for not complying with tariff order rules properly.

    Earlier in February, the regulatory body extended the deadline to pick channels under the new regime till 31 March as well as gave a directive of Best Fit Plans. The subscribers that don’t opt for new channels would be moved to ‘Best Fit Plans’, which would be developed as per usage pattern, language and channel popularity, the sector regulator said in its statement.

    Chief Justice of Delhi High Court Rajendra Menon on 13 February questioned TRAI for altering the implementation process of its new tariff regime without informing the court. The chairperson of the sector regulator had also been directed to file an affidavit within a week explaining these changes.

    While the regulatory body has continuously declined that cable bills would go up under the new regime, several reports, as well as surveys, have indicated the hike in the monthly bill. Due to the change in pricing, many experts predicted that consumers would shift to OTT platforms eventually. To decrease the churn rate, some of the DTH players have removed network capacity fee for long duration packs.

    In 2017, Bharti Telemedia, Tata Sky and Discovery Communications India had filed petitions against TRAI, challenging its tariff order and the interconnect regulations. Unlike the position adopted by Star India wherein it questioned the regulatory powers of TRAI, the matter in the Delhi HC questions the regulator’s power to wipe out deals that operators enter into to fix commissions and rates for customers.

  • Delhi HC rules in favour of Emami in case against HUL

    Delhi HC rules in favour of Emami in case against HUL

    MUMBAI: The Delhi High Court has upheld the right of Emami’s Fair and Handsome to run its advertisement that state that women’s fairness creams aren’t suitable for men’s tough skin. Rival Hindustan Unilever (HUL) had taken Emami to court claiming its commercial is disparaging to its own brand Fair & Lovely.

    HUL claimed in its complaint that brand endorser Vidyut Jammwal’s dialogue “Ab to ladkiyon ki cream chodo” is aimed at its own product Fair & Lovely and that the ad showed a white and pink tube which is its distinctive feature.

    The judgment dated 27 March, the Delhi High Court said that it cannot be said that the statements regarding men using women’s cream is false. It even added that the dialogue in question can’t be claimed to be false, misleading, unfair or deceptive and does not amount to generic disparagement.

    An Emami spokesperson said, “The ruling by the Delhi High Court reinforces the fact that Fair and Handsome is built on a foundation of truth and trust. We thank the High Court for upholding the truth and the right to free speech. Fair and Handsome has earned immense consumer trust and is among India’s Top 50 Most Trusted Health and Personal Care brands (Brand Equity Most Trusted Brands 2019 study). We take this consumer trust with humility and acknowledge the brand’s huge responsibility to our consumers. We are not surprised by the consistent strategy adopted by HUL to target Fair and Handsome on frivolous grounds across forums. We will endeavour to do everything in our realm to safeguard the best interests of consumers, by empowering them with the right information.”

    In June 2018, HUL aired a commercial for Men’s Fair & Lovely and Emami’s Fair and Handsome, claiming their own to be original. The High Court gave the verdict in favour of Emami and restrained HUL from circulating the displaying the commercial.

  • Delhi High Court orders release of all seized Tata Sky STBs

    Delhi High Court orders release of all seized Tata Sky STBs

    MUMBAI: The Delhi High Court directed the centre on Monday to release all the Tata Sky set-top boxes, barring five pieces, which were seized by the government for not displaying the maximum retail price.

    A bench of Chief Justice Rajendra Menon and Justice AJ Bhambani, in an interim order, directed the Ministry of Consumer Affairs to release the over six lakh STBs it had seized in January but allowed it to keep five of those for continuing with its probe.

    Issuing the direction, the bench said the government's decision was "prima facie arbitrary" and resulted not only in a financial loss to the direct broadcast satellite television provider, but also affected consumers who could not shift to the new STBs.

    "Here, the arbitrariness is writ large on the face of it," the bench added.

    It said the proceedings initiated by the government might go on in accordance with law and the company would participate in it.

    With the directions, the bench listed the matter for further hearing on 27 July.

    According to PTI reports the interim order came on Tata Sky's plea challenging the seizure of its STBs for not displaying the MRP.

    The company, in its petition, has also challenged the constitutional validity of a rule, which makes it mandatory to display the MRP on STBs.

    Besides seeking setting aside of the 17 January seizure report, Tata Sky has also requested that Rule 4 of the Legal Metrology Rules, which makes declaring the MRP on STBs mandatory, be quashed.

    It has also sought quashing of a 9 August 2018 circular by which the rule was made applicable to STBs.

    The company has contended that it is not required to declare the MRP on STBs as those fall under the definition of "industrial-consumer" according to the Legal Metrology (Packaged Commodities) Rules 2011.

    It has also said that since the STBs are not for sale, there is no need to indicate the MRP on those.

  • Delhi HC dismisses 9X Media, B4U Broadband, TV Vision petition challenging DD Free Dish e-auction

    Delhi HC dismisses 9X Media, B4U Broadband, TV Vision petition challenging DD Free Dish e-auction

    MUMBAI: The Delhi High Court has dismissed the petition filed by 9X Media, B4U and MASTiii against the DD Free Dish e-auction. Within a few days of the e-auction recommencement notice, the broadcasters approached the court as they felt the base prices are very high for small players.

    Senior lawyer Amit Sibal appearing for the petitioner 9XM argued that the music channels were free to air channels and they were not collecting any subscription amount. Hence, those channels could not be classified in the same bucket as general entertainment channels (GECs), and other channels.

    The revised guidelines of DD Free Dish auction says that differential pricing for genre (language) will be based on principle of higher reserve price for genre (language) with greater commercial potential. Sibal argued that the guiding norm has not been followed as the music channels have been placed in the same bucket as sports and GECs. He contended that the commercial potential of sports channels is greater than music channels.

    Sibal also argued that the commercial potential of music channels was much lower than news channels and yet the reserve price for news channels has been fixed at Rs 7 crore and music channels have been fixed at Rs 10 crore. He also referred to the financial statement of the petitioners to contend that they were loss making while the news channels were making profits.

    Earlier 9X Media mentioned in the petition that it is a loss-making entity with losses of Rs 7.81 crore and negative earnings per share and such a decision could adversely impact its business. Rajeev Sharma on behalf of Prasar Bharati pointed out the total revenue of 9XM for the financial year 2018 was around Rs 146.12 crore including Rs 138.71 crore as revenue from operations. He submitted that the reserve price of a slot was a very small fraction of the revenue. Sharma also added that the petitioners were already paying Rs 8 crore and the reserve price was only 25 per cent more than the existing price.

    Talking note of the argument, Justice Vibhu Bakhru said that the court does not agree to the argument that the reserve price fixed there under would amount to disabling an entrepreneur from carrying on the business of broadcasting a music channel. He also added that DD Free Dish is not the only platform to air the channels.

    Justice Bakhru also asserted that it will not be appropriate to enter into a controversy as to the assessment of the commercial potential of various genres or channels. The court also added that the question of fixing a reserve price is a matter of commercial discretion of the public broadcaster Prasar Bharati.

    “Prasar Bharti’s commercial decision to fix the prices is not amenable to judicial review under Article 226 of the Constitution of India, unless it is established that the same is so arbitrary or so unreasonable that no reasonable person could possibly take such a decision,” the judgement also said.

    Justice Bakhru also found Sibal’s contention that that petitioners are not challenging the policy but the implementation is unpersuasive as the petitioners are seeking to challenge the fixation of reserve price which itself is a matter of policy.

    The new policy guidelines has kept five buckets for e-auction of MPEG2 slots. Bucket A+ has been kept for Hindi GECs and teleshopping channels with a reserve price of Rs 15 crore, and Bucket A has been dedicated to Hindi movie channels with a reserve price of Rs 12 crore.

    Hindi music, sports, and Bhojpuri GEC and movie come under Bucket B which has a reserve price of Rs 10 crore. All news & current affairs (Hindi), news & current affairs (English) and news & current affairs (Punjabi) channels fall under the category of Bucket C which with a reserve price of Rs 7 crore. The Bucket D with lowest reserve price of Rs 6 crore will comprise of all other remaining genres/language channels.

  • Delhi HC dismisses PIL on OTT content regulation

    Delhi HC dismisses PIL on OTT content regulation

    MUMBAI: The Delhi High Court has dismissed a plea that sought for framing of guidelines for the working of OTT platforms like Netflix, Amazon Prime Video and Hotstar, according to a Press Trust of India report.

    The Ministry of Information and Broadcasting told the bench that online platforms do not need a licence to operate after which the petition was rejected.

    According to a PTI report, the petitioner NGO Justice for Rights Foundation claimed that the platforms show "uncertified, sexually explicit and vulgar" content that aren't for for public viewing. It mentioned shoes like Sacred Games, Game of Thrones and Spartacus as having vulgar, profane, sexually explicit, pornographic, morally unethical and virulent content which often objectify women.

    The petitioner also wanted the court to get the ministries to frame guidelines for the platforms and their content and even make them remove such restricted content.

  • Tata Sky vs TRAI: DTH operator concludes arguments; Delhi High Court lists case for 8 February

    Tata Sky vs TRAI: DTH operator concludes arguments; Delhi High Court lists case for 8 February

    MUMBAI: The next hearing of the direct-to-home operator Tata Sky’s ongoing legal battle, in which Discovery,  Bharti Telemedia-owned Airtel Digital TV and Sun Direct are a part, with the Telecom Regulatory Authority of India(TRAI) and its new tariff regime, has been scheduled for 8 February.

    On Monday, after senior lawyer Kapil Sibal, representing Tata Sky, concluded his arguments including legal submissions, Discovery India Communication’s counsel Gopal Jain laid the foundation for his arguments, which are expected to be concluded during the next hearing.

    The regulator informed the court that the new tariff order has already been implemented from 1 February.

    Earlier the TRAI had offered an extension till 31 January to the distribution platform operators (DPOs) for implementation.

    On 24 January, the Harit Nagpal-led company finally unveiled the new pricing of channels and packs after it was served a show-cause notice by the TRAI.

    TRAI's show-cause notice said, "Tata Sky has failed to provide options to its 17.7 million subscribers in compliance with the new framework to exercise their choices for TV channels. Tata Sky has put its subscribers in a situation of great difficulty despite no fault of theirs by not complying with the provisions of the new regulations and the tariff order.”

    Despite the delay in announcing channel prices, Tata Sky MD and CEO Nagpal is confident that his team can complete the tricky task of implementing the new norms within a relatively short span of time.

    “Tata Sky has always been compliant to regulatory requirements. We have gone live with our modes of communication across the Tata Sky website, Tata Sky mobile app and also equipped the dealers that subscribers can reach out to. We were confident that we would be able to complete the task in 1 week’s time. Hence we used this time to a seamless and smooth transition for all our subscribers. We have ensured that choosing channels and packs is as easy as 1, 2, 3 for any subscriber,” the veteran executive said.

    On 29 January, Calcutta High Court stayed the cable switchover till 18 February. The court’s directive was a result of 80 cable operators from the city filing a petition against the TRAI mandate. However, the high court later vacated the stay.

    The petitioners’ lawyer Debabrata Saha Roy argued that the revenue-sharing model under the new regime will significantly reduce the cable operators’ share to just nine per cent. With 80% will go into the broadcasters’ kitty, MSOs stand to get just 11 per cent, thus making it an unsustainable business proposition for operators.

    In 2017, Bharti Telemedia, Tata Sky and Discovery Communication India had filed petitions against TRAI, challenging its tariff order and the interconnect regulations.

    Unlike the position adopted by Star India wherein it questioned the regulatory powers of TRAI, the matter in the Delhi HC questions the regulator’s power to wipe out deals that operators enter into to fix commissions and rates for customers.

  • Bombay, Telangana HCs yet to decide on TRAI tariff cases

    Bombay, Telangana HCs yet to decide on TRAI tariff cases

    MUMBAI: Cases have been filed in various courts across the country and while the Calcutta High Court has vacated the stay on the case and the Gujarat High Court has asked for a response from TRAI, the Bombay and Telangana courts are yet to decide on similar petitions.

    The Telangana HC reserved judgment on a case filed by local cable operators who said that the regulations are arbitrary. The Pune Cable Operators Association went ahead and challenged TRAI as well, asking for a stay on the lines of the Calcutta High Court order. The bench, however, asked them to submit a copy of the order and refused to provide relief.

    The Madras High Court dismissed the PIL against the TRAI tariff order last week by quoting the Supreme Court judgment that went in favour of the regulator late last year.

    On 14 January, a similar case before the Kerala High Court was also dismissed which related to the revenue sharing aspect as well.

    LCOs all over the country are up in arms against some suggestions that have been made in the new tariff regime by TRAI that came into effect from 1 February. After TRAI won the case against Star India in October, the regulator gave the industry time till December end to put things into action. This was later extended to 31 January which was confirmed to the last date and no more extensions would be granted beyond that.

    Two days ago, TRAI claimed that all the stakeholders were ready with the new regime’s requirements. It also praised itself for ensuring that a large number of customers had exercised their options.

  • Gujarat HC issues notice to TRAI over MSO-LCO profit sharing

    Gujarat HC issues notice to TRAI over MSO-LCO profit sharing

    MUMBAI: The Gujarat High Court issued a notice to the Telecom Regulatory Authority of India (TRAI) and the centre on 1 February 2019, over a petition filed by local cable operators (LCOs) challenging the decision to fix the ratio of profit sharing between LCOs and multi-system operators (MSOs).

    In 2017, TRAI issued a notification fixing the ratio of sharing of service charges collected towards cable connections at 55:45 between MSOs and LCOs. This was done by inserting clause 12(7) in the Telecommunications (broadcasting & cable) Services Interconnection (Addressable Systems) Regulations.

    A bench headed by acting chief justice A S Dave has sought reply from the authorities and posted the matter for further hearing after two weeks.

    The Cable Operators Association Of Gujarat filed the petition through advocate Pratik Jasani challenging the insertion of the clause, fixing the revenue sharing between MSOs and LCOs. The cable operators have urged the HC to quash the arrangement before implementation of the 2017 notification, though the government consulted other stakeholders.