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How a lawyer used the IT Act to gag Legally India from publishing online

IT Act: Wide reach?
IT Act: Wide reach?

Kochhar & Co managing partner Rohit Kochhar has withdrawn a case against Legally India in the Cyber Regulations Appellate Tribunal on Friday, which had passed a stay order five weeks ago prohibiting Legally India from publishing any material relating to any of Kochhar’s disputes.

Background and timelines

On 18 April 2011 the Times of India first reported a Delhi Bar Council complaint by Delhi builder Puneet Beriwala against Kochhar. This was re-reported on the same day by legal website Bar & Bench, in which Kochhar denied the builder’s charges and claimed that he would sue Beriwala in a Rs 500 crore ($111m) defamation suit.

Legally India spoke to Kochhar at the time while Beriwala was unavailable for comment. Legally India had therefore not published any articles relating to Kochhar and Beriwala’s dispute.

According to Kochhar’s appeal filed with the Cyber Regulations Appellate Tribunal on Friday 13 May 2011, Legally India contacted Kochhar on 11 May “informing him that they were planning to publish a story on their website concerning the complaint filed by Punit Beriwala before the Bar Council of Delhi”. (Appeal No 7 of 2011 Rohit Kochhar versus Legally India, Kian Ganz and Neha Chauhan) [download a copy of Kochhar’s appeal here]

The Cyber Regulations Appellate Tribunal set a hearing date for last Friday (17 June) and ordered that Legally India “in the meantime [was] restrained from entertaining, accepting, carrying on or publishing any information or material relating to any of the judicial and quasi judicial proceedings concerning the appellant”. [download a copy of the order here]

Content and prayers

Kochhar’s appeal stated: “Since the Bar Council proceedings were held behind closed doors, the appellant was shocked that the matter was intended to be publicised through a website such as Legally India. The Appellant also explained to the respondents that almost 500 complaints are filed with the Delhi Bar Council every year and it would be highly inappropriate for Legally India to be publishing this matter on their website based on information shared with them – which had obviously been done with ulterior motives.”

New IT Act Rules governing content

Kochhar’s appeal did not cite any specific laws as grounds.

The IT Act itself under section 67 prohibits the electronic publication of information which is “obscene” and has the tendency to “deprave” and “corrupt”.

On 11 April 2011 the IT Ministry’s Information Technology (Intermediaries Guidelines) Rules, 2011 were notified.

The rules state that intermediaries, which includes almost all web sites and similar services, “shall not knowingly host or publish any information or shall not initiate the transmission, select the receiver of transmission, and select or modify the information contained in the transmission” for any information from “users” that is “grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever”.

Those rules have been widely criticised by newspapers, websites, bloggers and civil society commentators as curtailing freedom of speech and being unworkable.

Since early 2011 the English courts have come under fire for passing so-called ‘superinjunctions’, which gagged newspapers from reporting stories about celebrities and from reporting the existence of the injunction, which has been claimed as a basic violation of the freedom of the press to report.

“It is apparent that the adverse party, i.e. Punit Beriwala is acting malafide and through direct, indirect and surrogate means is trying to tarnish the reputation of the appellant and his law firm by providing misleading and inaccurate information and allegations which are the subject matter of judicial and quasi-judicial proceedings between the Appellant and Beriwala,” added the appeal, citing no evidence for the contention.

The appeal prayed for Legally India’s editorial team to “be called upon to explain how they procured a copy of the Bar Council complaint, which is the subject matter of confidential proceedings which are held behind closed doors”.

Legally India does not discuss confidential sources of information as a matter of principle.

Kochhar’s appeal was also seeking an interim order “restraining [Legally India] from entertaining, accepting, publishing and carrying on their website any material which is adverse to the image and reputation of the Appellant” and from “maintaining and supporting any blog or link on their website ‘Legally India’ which facilitates and enables anonymous third parties to make disparaging, uncomplimentary and even defamatory remarks and comments concerning the Appellant”. [download a copy of Kochhar’s appeal here]

The appeal furthermore prayed for the “Computer Emergency Response Team – India to monitor and block all defamatory content posted on the Website of ‘Legally India’ against Mr Rohit Kochhar”.

Service and remedies

The existence of the stay order was communicated by Kochhar by telephone to Legally India on the evening of 13 May.

Following repeated requests, six days later Legally India received an uncertified copy of the draft order and appeal from Kochhar’s lawyers by email. The Tribunal served Legally India a copy of the order by email on 24 May and a copy of Kochhar’s original appeal on 1 June.

A Tribunal staff member later confirmed to Legally India by email that “as per our record there is no original complaint. The Appeal has been directly before [this] Tribunal.” Legally India has to date not received any evidence of a complaint having been made to an officer under the IT Act before the Tribunal was approached.

Section 57 of the Information Technology Act (IT Act) allows appeals to the Cyber Appellate Tribunal only if all other remedies have been exhausted after approaching an Adjudicating Officer or nodal officer under the IT Act.

Kochhar’s appeal stated under the heading “Details of remedies exhausted” that “the applicant declares that there is no efficacious and speedy remedy available to the applicant except to approach this Hon’ble Tribunal”.

No specific cause of action under the IT Act was explicitly cited in Kochhar’s appeal to the Tribunal (see box).

It is understood that Kochhar also procured an injunction against Bar & Bench from the same Tribunal, preventing any further publication relating to the case and seeking removal of reader comments relating to him.

The hearing

Following a 14 June telephone conversation with Vivek Ahuja, the managing director of Kochhar-promoted company Confiar, and at his request Legally India sent an email to Kochhar stating among other things and without prejudice that “all our communications with you to date in this regard have been without any intended disrespect and/or malice and have been solely to further the purpose of impartial, fair, accurate and lawful reporting… At our end, we assure a continued commitment towards impartial and accurate journalism within the boundaries laid down in law.” [download a copy of the email here]

At a hearing at the Delhi Cyber Appellate Tribunal on Friday (17 June), Kochhar’s lawyers withdrew the complaint citing that Kochhar was “desirous of withdrawing the appeal as based on discussions with the respondents the threats of adverse publication as mentioned in the appeal do not subsist anymore”. [download copy of the withdrawal application]

Legally India contacted Kochhar yesterday for comment on the Cyber Appellate Tribunal case. Ahuja stated on Kochhar’s behalf: “We withdrew the petition because we were requested by Legally India to do so.”

Legally India was represented by Laware Associates partner Rajat Malhotra, who noted that he was copied in to the email which “very clearly states that it has been issued in the form of a clarification” and that “we received no reply to that email and were only informed that Kochhar was willing to withdraw the matter”.

Malhotra said that on Friday 17 June he moved for Kochhar’s appeal to be dismissed for a lack of standing, which was recorded by the Tribunal while allowing for the withdrawal of the case by Kochhar’s counsel.

Malhotra added: “Our contention was limited to the point that the appeal was per se not maintainable as section 57 [of the IT Act], the provision under which the appeal was referred, is purely an appellate provision and requires for an order by the adjudicating officer to constitute a cause of action for any such appeal.”

He added that this principle had also been upheld by the Tribunal in the cases Aruna Kashinath v. Gmail.com (Appeal 8/2009) and Dr. Avinash Agnihotry Vs. Controller of Certifying Authorities and another (Appeal 4/2009).

Furthermore, said Malhotra, the rules talked about a positive act of publication having to be required before the rules could be invoked, which did not exist in the present case.

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