Team Code: IMC50

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

MEMORANDUM ON BEHALF OF PETITIONER

 INTERNAL MOOTING CHAMPIONSHIP, 2021
TABLE OF CONTENTS

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

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LIST OF ABBREVIATIONS

LIST OF ABBREVAITION

AIR All India Reporter

SCC Supreme Court Cases

SC Supreme Court

Ors Others

Anr Another

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TABLE OF AUTHORITIES

TABLE OF AUTHORITIES

CASES REFFERED

Gobind v. State of Madhya Pradesh, AIR 1975 SC 1378

1. State of Madras v G Row 1952 AIR 196
2. Harkchand ratanchand Bantia v Union of India, AIR 1970 SC 14453
3. Chintaman Rao v State of Madhya Pradesh AIR 1951 SC 118
4. Bodhisattwa v. Subhra Chakraborty, AIR 1996 SC 922.
5. State of Madras v. V.G. Row, AIR 1952 SC 196.
6. Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295
7. MC Mehta v. Union of India, AIR 1987 SC 1086
8. Nilabati Behera v. State of Orissa, AIR 1993 SC 1960; Kharak Singh v. State of Uttar
Pradesh, AIR 1963 SC 1
9. Ram Singh vs The State Of Delhi on 6 April, 1951 1951 AIR 27
10. S. Rangarajan Etc vs P. Jagjivan Ram, 1989 SCR (2) 204
11. 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

1. www.thehindu.com

2. www.scconline.com

3. www.indiankanoon.com

4. www.legalservices.com

5. www.westlaw.com

6. www.manupatra.com

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TABLE OF AUTHORITIES

7. www.indialegallive.com

8. www.legitquest.com

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STATEMENT OF JURISDICTION

STATEMENT OF JUSRISDICTION

THE PETITIONERS HAVE APPROCHED THIS HONORABLE SUPREME COURT

UNDER ARTICLE 32 OF THE CONSTITUTION. THE PETIONER HAS APPROACHED
THIS HONORABLE SUPREME COURT CHALLENGING THE CONSTITUTIONAL
VALIDITY OF INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND
DIGITAL MEDIA ETHICS CODE) RULES, 2021 AS THE SAID PROVISION VIOLATES
THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION GUARANTEED UNDER
ARTICLE 19(1)(a).

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STATEMENT OF FACTS

STATEMENT OF FACTS

1. 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.
2. 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.
3. Prior to this incident, the Government had introduced the Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, on 25 th
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.
4. 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.
5. The petition was admitted by the Supreme Court and clubbed with the copyright
violation pending before the High Court of Delvy.

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STATEMENT OF ISSUES

STATEMENT OF ISSUES

1. Whether the petition filed by Setflix for the constitutionality of the Rules before
the Supreme Court of Indus is maintainable?

2. Whether the Information Technology (Intermediary Guidelines and Digital

Media Ethics Code) Rules, 2021 are constitutional?

3. Whether the Webstagram story posted by Mr. Rukh Shah Khan amounts to a
copyright violation?

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SUMMARY OF ISSUES

SUMMARY OF ISSUES

1. Whether the petition filed by Setflix for the constitutionality of the Rules before
the Supreme Court of Indus is maintainable?

The counsel for the petitioner submits before this hon’ble Supreme Court that the
writ petition filed by the petitioner is maintainable as there has been a violation of
fundamental rights namely, the freedom of speech and expression, enshrined under
Art. 19(1)(a) of the Constitution of Indus. The petitioner is hence empowered, under
Art. 32, to file a writ petition for the enforcement of fundamental rights.

2. Whether the Information Technology (Intermediary Guidelines and Digital

Media Ethics Code) Rules, 2021 are constitutional?

The counsel for the petitioner submits before this hon’ble Supreme Court that the
Information Technology (Intermediary Guidelines and Digital Media Ethics Code)
Rules, 2021 is unconstitutional for the following reasons:

2.1 It violates the petitioners right to freedom of speech and expression.

2.2 There exists no legislative backing to the Rules.

2.3 The Government makes uses of powers it does not possess

2.4 The Rules would lead to excessive Government interference in the workings of the
petitioner

3. Whether the Webstagram story posted by Mr. Rukh Shah Khan amounts to a
copyright violation?

Copyright is a form of intellectual property rights guaranteed under the Indian law to the
i
creators of original works of authorship such as literary works, dramatic, musical and artistic
works, cinematographic films and sound recordings. Copyright protection is conferred to all
the aspects of works mentioned under section 13 of copyright act, 1957. Since Mr Rukh Shah
Khan posted a major amount of information from the documentary in a public and free
media, he has amounted to copyright violation.

The counsel for the petitioner submits before this hon’ble Supreme Court that the
webstagram story posted by Mr. Rukh Shah Khan amounts to a copyright violation according
to the following aspects.

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SUMMARY OF ISSUES

1. Ownership of copyright lies under Setflix

2. Mr Rukh Shah Khan has infringed the copyright status of setflix
3. Availability of alternative remedy

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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
Pradesh1, 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

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In the case of State of Madras v G Row 2, the SC laid the basic principle that test of
reasonableness whenever prescribed shall be applied to each individual statute impugned and
no abstract or general principle of reasonableness shall be laid down as applicable in all
cases. Each case has to be seen independently, However the test of reasonableness shall be on
the basis of the following grounds; “The nature of the right alleged to have been infringed,
the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought
to be remedied thereby, the disproportion of the imposition and the prevailing conditions at
thetime”3
In Chintaman Rao v State of Madhya Pradesh 4, The Supreme Court opined that a restriction
in order to be referred to as reasonable shall not be arbitrary and shall not be beyond what is
required in the interest of the public. In this case, the IT Rules, 2021 has terms such as which
are vague and this leads the Act to be arbitrary in nature.

1.3 Existence of alternative remedies is not an absolute bar

The existence of an alternative remedy does not operate as an absolute bar on the writ court.
Article 32 is in itself a fundamental right 5 and therefore, the existence of an alternative
remedy is no bar to the Supreme Court entertaining a petition under Article 32.The court
stated that Article 32 imposes an obligation on the Supreme Court which it must discharge
when a person complains on infringement of fundamental rights. This proposition has been
reiterated by the Supreme Court in State of Madras v. V.G. Row 6 and Kharak Singh v. State
of Uttar Pradesh7.

1.4 This Hon'ble Court has a constitutional duty to protect fundamental rights
The Constitutional obligation of this Hon'ble Court as the guarantor of fundamental rights has
been interpreted broadly8 and as one that exists independent of any other remedy that may be
available.9 This is particularly true in cases of grave public importance where relief may not
be denied on mere technical grounds. In the case of Ram Singh Vs Delhi10, the Supreme
Court of India observed that it is the duty of the Supreme Court to see the right, intended to

2
State of Madras v G Row 1952 AIR 196
3
Harkchand ratanchand Bantia v Union of India, AIR 1970 SC 14453
4
Chintaman Rao v State of Madhya Pradesh AIR 1951 SC 118
5
Bodhisattwa v. Subhra Chakraborty, AIR 1996 SC 922.
6
State of Madras v. V.G. Row ,AIR 1952 SC 196.
7
Kharak Singh v. State of Uttar Pradesh,AIR 1963 SC 1295
8
MC Mehta v. Union of India, AIR 1987 SC 1086
9
Nilabati Behera v. State of Orissa, AIR 1993 SC 1960; Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1
10
Ram Singh vs The State Of Delhi on 6 April, 1951 1951 AIR 270

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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

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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. Row14. 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 India15, 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

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of the Information Technology Act, 2000 was struck down as it was found vague and hence
violative of the freedom of speech and expression. The section too contained the term
“insult” which was considered as vague. Therefore, incorporating the term in any subsequent
legislation would contravene with the Courts interpretation of fundamental freedoms and the
Constitution.

2.2 Whether the Ministry of Electronics and Information Technology has the power to
make rules regarding OTT platforms?

The Ministry of Information and Broadcasting, on November 9th, through an amendment to

the Government of India (Allocation of Business) Rules, 1961, in exercise of the power
provided in Article 77(3) of the Constitution, was given administrative clarity over online
content providers and News and current affairs content on online platforms. However, the
notification did not confer powers to make rules regarding the same. A parliamentary
enactment was necessary to make any rules regarding OTT platforms. However, instead of
going to parliament, the Intermediary Rules framed under the IT Act seek to expand the
scope of regulation under the purview of the IT Act to include digital news media and OTT
platforms.

2.3 Whether online content providers come under the definition of ‘intermediaries?

Intermediaries, as defined by the Information Technology Act, 2000, are ‘any person who on
behalf of another person receives, stores or transmits that record or provides any service with
respect to that record’. In the case of Shreya Singhal vs Union of India16 noted that
intermediaries are merely facilitators of content. It is argued by the petitioner that they are
content creators and not content facilitators. Even though they function through the internet,
their role is akin to films and TV shows. A 2010 report by the Organisation for Economic Co-
operation and Development (OECD), named ‘THE ECONOMIC AND SOCIAL ROLE OF
INTERNET INTERMEDIARIES’, defined intermediaries as service providers who “give
access to, host, transmit and index content, products and services originated by third parties
on the Internet or provide Internet-based services to third parties”. This clearly indicates that
intermediaries do not themselves create or own the content being published or broadcasted.
OTT platforms create and own the published content. They would, therefore, not come under
the ambit of ‘intermediaries. Since the Information Technology Act, 2000 and the

16 Shreya Singhal v. Union of India (2015) 5 SCC 1

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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.

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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.

1. Copying
2. Issuing copies of the work to the public
3. Renting or lending the work to the public
4. Performing, showing or playing a copyright work in public
5. Communicating the work to the public
6. 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.

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3.3 Availability of alternative remedy

Setflix can seek remedies through civil remedies

1. Interlocutory Injunctions

The most important remedy which requires three requirement, firstly, prima facie, in this case
the owner need to have the registration certificate of the rights of the documentary that shows
as the proof for the prima facie, secondly there needs to be a balance of convenience. Finally,
there needs to be an irreparable injury.

2) Pecuniary Remedies

Copyright owners can also seek three pecuniary remedies under Section 55 and 58 of the
Copyright Act of 1957. First, an account of profits which lets the owner seek the sum of
money made equal to the profit made through unlawful conduct. Second, compensatory
damages which let the copyright owner seek the damages he suffered due to the infringement.
Third, conversion damages which are assessed according to the value of the article.

Setflix can also seek criminal remedies through :-

Under the Copyright Act, 1957 the following remedies are provided for infringement:

• Imprisonment up to 3 years but, not less than 6 months

• Fine which may not be less than 50,000 but, may extend up to 2,00,000

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PRAYER

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/-

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