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INTERNAL MOOTING CHAMPIONSHIP
IN THE HON’BLE SUPREME COURT OF INDUS
~~ No.: ____/20^ SETFLIX ........Petitioners V. STATE OF INDUS & ........Respondents RUKH SHAH KHAN ........Respondents BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDUS Team Code: IMC
TABLE OF CONTENTS ~iii~
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................................ i LIST OF ABBREVAITION ......................................................................................................ii TABLE OF AUTHORITIES ................................................................................................... iii STATEMENT OF JUSRISDICTION ....................................................................................... v STATEMENT OF FACTS ....................................................................................................... vi STATEMENT OF ISSUES .....................................................................................................vii SUMMARY OF ISSUES ...................................................................................................... viii ARGUMENTS ADVANCED ................................................................................................... 1 ISSUE 1 ..................................................................................................................................... 1 ISSUE 2 ..................................................................................................................................... 4 PRAYER .................................................................................................................................... 9
TABLE OF AUTHORITIES ~iii~
TABLE OF AUTHORITIES
CASES REFFERED
Gobind v. State of Madhya Pradesh, AIR 1975 SC 1378
- State of Madras v G Row 1952 AIR 196
- Harkchand ratanchand Bantia v Union of India, AIR 1970 SC 14453
- Chintaman Rao v State of Madhya Pradesh AIR 1951 SC 118
- Bodhisattwa v. Subhra Chakraborty, AIR 1996 SC 922.
- State of Madras v. V.G. Row, AIR 1952 SC 196.
- Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295
- MC Mehta v. Union of India, AIR 1987 SC 1086
- Nilabati Behera v. State of Orissa, AIR 1993 SC 1960; Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1
- Ram Singh vs The State Of Delhi on 6 April, 1951 1951 AIR 27
- S. Rangarajan Etc vs P. Jagjivan Ram, 1989 SCR (2) 204
- Shreya Singhal v. Union of India (2015) 5 SCC 1 LEGISLATIONS REFERRED Information Technology Act, 2000 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 WEBSITES REFERED
- www.thehindu.com
- www.scconline.com
- www.indiankanoon.com
- www.legalservices.com
- www.westlaw.com
- www.manupatra.com
TABLE OF AUTHORITIES ~iii~
- www.indialegallive.com
- www.legitquest.com
STATEMENT OF FACTS ~iii~
STATEMENT OF FACTS
- Setflix, an OTT platform in Indus, created a docuseries on Lobbywood, the film industry of Indus. The docuseries detailed the growth of Lobbywood and the impact of actors on the industry. For the finale of the docuseries, Setflix added a 20 minutes clip of Mr. Rukh Shah Khan waving and interacting with the paparazzi.
- Mr. Rukh Shah Khan posted 10 minutes of the same on his Webstagram stories on 2nd March, 2021. Setflix did not appreciate the fact that Mr. Rukh Shah Khan took the liberty to post a major part of the docuseries on social media and hence contacted his managers regarding. Mr Rukh Shah Khan, however, refused to remove the story. He claimed that his stardom was used by Setflix for monetary gain. Aggrieved by the same, Setflix approached the High Court of Delvy seeking remedy for the alleged copyright violation.
- Prior to this incident, the Government had introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, on 25th February 2021. Previously, OTT platforms, such as Setflix, had produced content that was objected to by certain sections of the society for vulgarity and mocking religious sentiments. Moreover the Government had received complaints regarding the differential treatment between OTT platforms and Television telecasts. The guidelines mandated setting up a three-tier structure to address grievances made in relation to the publishers on OTT platforms and Digital News. This system includes an oversight committee headed by the government.
- Aggrieved by these guidelines, Setflix filed a petition before the Supreme Court of Indus challenging their validity. Setflix claimed that the new rules resulted in excessive government interference and was, furthermore, violative of the Freedom of Speech and Expression, Article 19(1)(a) of the Constitution of Indus. They pray that the rules should be withdrawn and an expert committee should be set up with public consultation to establish a reasonable framework.
- The petition was admitted by the Supreme Court and clubbed with the copyright violation pending before the High Court of Delvy.
STATEMENT OF ISSUES ~iii~
STATEMENT OF ISSUES
1. Whether the petition filed by Setflix for the constitutionality of the Rules before **the Supreme Court of Indus is maintainable?
- Whether the Information Technology (Intermediary Guidelines and Digital** **Media Ethics Code) Rules, 2021 are constitutional?
- Whether the Webstagram story posted by Mr. Rukh Shah Khan amounts to a** copyright violation?
SUMMARY OF ISSUES ~iii~
- Ownership of copyright lies under Setflix
- Mr Rukh Shah Khan has infringed the copyright status of setflix
- Availability of alternative remedy
|ARGUMENTS ADVANCED|ISSUE 1| ~iii~
ARGUMENTS ADVANCED
ISSUE 1
1. Whether the petition filed by Setflix for the constitutionality of the Rules before the Supreme Court of Indus is maintainable? The petitioners humbly submit before this honb’le court that the petition filed by Setflix for the constitutionality of the IT Rules, 2021 is maintainable for the reasons mentioned below: 1.1 Violation of Fundamental Rights Indian constitutional jurisprudence has so finely brought about the inter relationship between article 14, 19 and 21 by the Supreme court in the landmark maneka Ghandi case. The IT Rules, 2021 are primarialy violative of Article 19 of the consitituion. This IT Rules, 2021 seek to control, censure, reprimand, or require a warning card or disclaimer, require an apology, reclassify ratings, or even censor the content as it deems fit and recommend action under Section 69A of the IT Act. The IT Rules, 2021 also seek to track down the original creator of any message. This directive debilitates those organisations whose main value is encryption, such as whatsapp which provided end to end encryption. This used with the Information technology decryption Rules will let the government will break any type of end-to-end encryption to gain knowledge of who sent what message and also get to know its contents. In Gobind Vs State of Madhya Pradesh^1 , the case which birthed the fundamental right to privacy, it was indeed held that privacy was an aspect of Article 21. The removal of end to end encryption is a massive breach of yet another fundamental right (Article 21) 1.2 Restrictions are not reasonable in nature Corresponding to the six freedoms laid down in Article 19(1), certain grounds have been mentioned under article 19(2) to 19(6) on which the state may impose reasonable restrictions. However, the term “reasonable” has not been defined under the constitution and no tests were laid down either. Thus over time, the Supreme Court has laid down tests and principles with respect to the concept of reasonable restrictions. (^1) Gobind v. State of Madhya Pradesh, AIR 1975 SC 1378
|ARGUMENTS ADVANCED|ISSUE 1| ~iii~ be fundamental must be kept fundamentally. Thus, it is submitted that a refusal to entertain the Writ petition would be inconsistent with the aforesaid obligation^11. 1.5 Writ petition is maintainable when there is infringement of fundamental rights Article 13(2) states that the state “shall not make any law” which takes away or abridges the fundamental rights and any law made in contravention to this clause, to the extent of the contravention be void and Article 32(2) provides the right to approach the Supreme Court on infringement of fundamental rights. It was held in the case of Simranjit vs Union of India^12 that a mere threat to infringement of fundamental rights is enough to justify the issue of the writ. In the instant case the Act infringes the right to freedom of speech and expression. Therefore, petitioners submit that in this present case is maintainable before this Hon’ble Supreme Court. (^11) Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 129; Romesh Thappar v. The State of Madras, AIR 1950 SC 124 (^12) Simranjit vs Union of India AIR 1993 SC 280
|ARGUMENTS ADVANCED|ISSUE 2| ~iii~
ISSUE 2
2. Whether the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 are constitutional? The counsels of the petitioner submits before the hon’ble Supreme Court that the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 are unconstitutional as they violate the petitioner's freedom of speech and expression, stated under Art. 19(1)(a) of the Constitution of Indus. 2.1 Whether the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules violate Art. 19(1)(a)? The counsel for the petitioner contends that the Rules are violative of Art. 19(1)(a). In the In the S. Rangarajan Etc vs P. Jagjivan Ram^13 it was held that everyone possess the right to publish opinions .The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules restricts such freedom provided under part III of the Constitution. 2.1.1 Whether the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) fall under the reasonable restrictions provided under Art. 19(2)? The petitioner submits before the hon’ble court that the Rules do not fall under the ambit of reasonable restrictions provided under Art. 19(2). It has been held by C.J Patanjali Shastri, in the case of State of Madras vs V.G. Row^14. Union of India & State, that “it is important… to bear in mind that the test of reasonableness, wherever prescribed should be applied to each individual statute impugned, and no abstract standard or general pattern of reasonableness, can be laid down as applicable to all cases”. The petit 2.1.2 Usage of vague terms The petitioner contends that the Rules use a plethora of vague terms such as “insulting”, “libellous” or “inconsistent”. In the case of Shreya Singhal vs Union of India^15 , section 66A (^13) S. Rangarajan Etc vs P. Jagjivan Ram, 1989 SCR (2) 204 (^14) State of Madras v. V.G. Row ,AIR 1952 SC 196. (^15) Shreya Singhal v. Union of India (2015) 5 SCC 1
|ARGUMENTS ADVANCED|ISSUE 2| ~iii~ Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, make rules for intermediaries only and the definition of intermediaries is not broad
enough to cover OTT and publishers of news, the Rules are consequently unconstitutional.
2.4 Whether the Rules lead to excessive Government interference? It is maintained by the petitioner that the Rules would lead to excessive Government Interference. The Grievance Redressal Mechanism mandated by the Rules is three-tiered. The Chairman of the self-regulatory body(second-tier) is suggested to be a retired Judge of the High Court or Supreme Court, and even though the body is expected to be appointed/elected by the media community, the MI&B retains approval power over the composition of the body. The third-tier is known as the ‘Inter-Departmental Committee’ and consists of representatives from the Ministry of Information and Broadcasting, Ministry of Women and Child Development, Ministry of Electronics and Information Technology etc. The chairman of the committee is the Joint Secretary of the MI&B. These are members of the executive taking up functions of the judiciary. The committee should not be given the powers to adjudicate over complaints regarding OTT platforms as it breaches the doctrine of separation of powers. Moreover, the Rules provide emergency blocking powers, if the Secretary deems that there is a justifiable reason to block any online content, he/she can do so without giving opportunity of hearing. Such measures would lead to excessive Government control. Thus the counsels of the petitioner submits before the hon’ble Supreme Court that the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 are unconstitutional in nature.
|ARGUMENTS ADVANCED|ISSUE 2| ~iii~
ISSUE 3
Whether the Webstagram story posted by Mr. Rukh Shah Khan amounts to a copyright violation? The petitioners humbly submit before this honb’le court that the petition filed by Setflix regarding the story posted by Mr Rukh Shah Khan amounts to a copyright violation. 3.1 Ownership of the copyright lies with setflix The copyright Act grants the owner of the respective cinematographic film, in this case, setflix, special rights which exist independently of the owner’s copyright, and subsist even after the assignment (whole or partial) of said copyright. The owner has the right to:
- claim authorship of the work
- restrain or claim damages with respect to any distortion, mutilation, modification, or other act in relation to the said work if such distortion, mutilation, modification, or other act would be prejudicial to their honour or repute. 3.2 Mr Rukh Shah Khan has infringed the copyright status of setflix Primary infringement occurs where a person performs any of the following acts without the consent of the rights holder.
- Copying
- Issuing copies of the work to the public
- Renting or lending the work to the public
- Performing, showing or playing a copyright work in public
- Communicating the work to the public
- Making an adaptation of a copyright work or doing any of the acts listed above in relation to an adaption. Mr Rukh Shah Khan has committed primary infringement by communicating the work owned by setflix to the public in a free domain without the consent of the right holders.
PRAYER ~iii~
PRAYER
Wherefore , in light of the issues raised, authorities cited and arguments advanced, the Hon’ble Supreme Court of Indus be pleased to:
- Hold the petition to be maintainable
- In the alternative declare and adjudge: a. That the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 are unconstitutional in nature, b. That the Webstagram story posted by Mr. Rukh Shah Khan does amount to a copyright violation, c. hold the petition to be maintainable AND/OR Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience. All of which is most humbly and respectfully submitted. Counsel on behalf of Petitioner Sd/- i
