WHETHER SHARING OF MANU SHARMAS INTERNET ACTIVITY WITH THIRD PARTY IS

ILLEGAL AND VIOLATION OF RIGHT TO PRIVACY?

It is most respectfully submitted that the respondent actions are in no way illegal and in violation
of the right to privacy of Manu Sharma. The actions of the respondent were in furtherance to
protect the copyright infringement of the sister company relating to their upcoming movie Sugar
Rush. Sharma had downloaded pirated songs of their movie on August 19, 2014 using WindTel
broadband connection installed at his home. The respondent has a duty to report a crime
wherever it is committed.
Right to Privacy not an Absolute Right
While the Constitution does not explicitly guarantee a right to privacy, the courts in India have
consistently read that right into the definition of the fundamental right to life and personal
liberty.
1
These rights are not absolute and the courts have held that parliament may impose
reasonable restrictions on the exercise of fundamental rights.
Mr. X v. Hospital Z
2
, involved a claim for damages made by a patient against a hospital
which disclosed the fact that the patient tested positive for HIV which resulted in his proposed
marriage being called off and the patient being ostracized by the community. This court
observed:
public disclosure of even true private facts may amount to an invasion of the right of privacy
which may sometimes lead to clash of one persons right to be let alone with another persons
right to be informed. The right, however, is not absolute and may be lawfully restricted for the

1
R. Rajagopal v. State of T.N. (1994) SCC 632; and summarized in Naz Foundation v. Government of Delhi,W.P. (C)
No. 7455/2001, (2009)
2
(1998) 8 S.C.C. 296
prevention of crime, disorder or protection of health or morals or protection of rights and
freedom of others.
Similarly, there are several other cases where the courts have allowed the disclosure of
information for a larger public benefit. The courts balance the countervailing arguments for
public benefit which may arise from the disclosure.
3
Courts, hence, may allow the disclosure
when it concerns a person infected with the AIDS virus whose prospective marriage will likely
result in the communication of the virus;
4
the issue of the legitimacy of a child for which a
divorced husband will be liable to pay maintenance;
5
and the steps to be taken by a bank to
recover debts from a willful defaulter.
6

Copyright Infringement
According to 14(a)(i) of the Copyright Act, 1957 the copyright owner in a literary, dramatic or
musical work has an exclusive right subject to the provisions of the Act to reproduce the work or
authorize the reproduction of the work in any material form. Reproduction rights include the
right to store the work in any medium by electronic means.
7
Moreover, under the Copyright Act
it is provided that the reproduction of a literary, dramatic, musical or artistic work in the form of
a cinematograph film shall be deemed to be an infringing copy.
8
Therefore, whosoever uploads
of downloads copyrighted material without the permission of the copyright owners no doubt
violates copyright law.

3
Apar Gupta, The Law of Online Privacy in India, (2011) PL April S-3
4
Mr. X v. Hospital Z, (1998) 8 S.C.C. 296
5
Akila Khosla v. Thomas Mathew, 2002 (62) D.R.J. 851
6
Mr. K. J. Doraisamy v. The Assistant General Manager, State Bank of India, (2006) 4 M.L.J. 1877. See also District
Registrar & Collector, Hyderabad v. Canara Bank, A.I.R. 2005 S.C. 186
7
Alka Chawla, Law of Copyright: Comparative Perspective, First Edition, 2013, Lexis Nexis
8
51 Explanation of the Copyright Act.
In Microsoft Corporation v. Nimesh,
9
defendants were loading software programmes of
Microsoft on to the branded computers witout taking any authorization from them and selling the
computers with the unauthorized computer programs to the customers. Held, the defendants
infringed rights of the owners of the copyright under 14(a)(i) and 51. Further held that the
rights of the plaintiff were protected under 40 of the Copyright Act, 1957 as both India and US
are members of Berne Convention and Universal Copyright Convention.
Right to Privacy vs. Piracy
One of the biggest perils that the music industry faces today is the ferocious battle between
privacy rights and the violation of copyrights stemming from music piracy. In todays digital
age, the downloading, burning or transmission of copyrighted material is referred to as piracy,
and is definitely against the law.
10
Music piracy has heavily increased since the beginning of
MP3s and other widely used digital audio formats. Unfortunately, anyone with a computer and
an Internet connection can connect to multiple computers and share data virtually undetected.
This has caused quite a problem for the record industry and has trickled down to have an effect
on artists, writers, arrangers and arguably the entire music industry.
India has emerged as one of the biggest hubs of online piracy, with Delhi, Bangalore and
Mumbai accounting for the major share of the illegal downloads.
11
Studies by the Motion Picture
Association have showed that India accounts for maximum film piracy in any English-speaking

9
2012(51) PTC 205 (Del), also see, Microsoft Corporation v. Dhiren Gopal, 2010 (42) PTC 1 (Del); Microsoft
Corporation v. Rajendra Pawar, 2008 (36) PTC 697 (Del).
10
Topher Adam Sawan, Privacy vs. Piracy, Berkley Music Business Journal, Music law, November 2008. Available at
http://www.thembj.org/2008/11/privacy-vs-piracy/
11
Swaraj Paul Barooah, Taking a look at Online Piracy in India, January 24, 2013,
http://spicyip.com/2013/01/guest-post-taking-look-at-online-piracy.html
country if one goes by the number of broadband subscribers.
12
This study also shows that India is
the fourth largest downloader of films after the US, Great Britain and Canada.
13
According to the
US India Business Council, report of Ernst & Young 2008 on The Effects of Counterfeiting and
Piracy on Indias Entertainment Industry, the Indian film industry lost USD 959 million and
571,896 jobs in that year due to piracy.
14

We can only protect our intellectual rights if we know and go after the one who infringes them.
Being able to put a face to a name is the only way justice can run its course. Taking an example
of an IP address, which could be used for anything not-so- honourable on the web: for infringing
copyright, jail- breaking PayTV or identity theft on social media. If we cant put a face to this IP
address and get the real name, whom to sue? And where?
15
So it gets very important to identify
the infringer and ensure that piracy does not hide behind privacy.
One of the ways through which the Indian Courts have given way to copyrights when it locks
horn with privacy is John Doe orders.
16
John Doe orders or John Doe injunctions are cease
and desist orders passed by a court of law against anonymous entity/entities. The principle is
that the person who is a threat is not known as they are veiled being many in number backed by
unknown identities. Recently, Delhi High Court in Star India Pvt. Ltd. & Anr. vs Haneeth Ujwal
& Ors.
17
passed an Ex Parte Ad Interim Order in favour of Star India Ltd wherein over a hundred

12
ENVISIONAL & MOTION PICTURES ASSOCIATION, INDIA: INTERNET PIRACY LANDSCAPE AUDIT (2009)
13
Id. at 13.
14
http://www.financialexpress.com/news/piracy-a-serious-threat-to-indian-film-industry/592752, Piracy, a serious
threat to Indian film industry, Published: Mar 19 2010, 00:05 IST
15
Alexander Tsoutsanis, Privacy and piracy in cyberspace: justice for all, Journal of Intellectual Property Law &
Practice (2013) 8 (12):952-956.
16
See, Taj Productions v. Rajan Mandal and Ors. 2003 F.S.R. 22; Viacom 18 Motion Pictures v. John Doe Cable
Networks and Ors., I.A. No. 11242/2011, in the Delhi High Court (Singham Movie Case); Reliance Big
Entertainments v. Multivision Networks and Ors., CS(OS) 3207/2011 in the High Court of Delhi (Don 2 Movie
Case). R.K. Productions v. BSNL Ltd and Ors. O.A.No.230 of 2012 in the High Court of Madras.(The Kolaveri
Di Case), etc.
17
CS(OS) 2243/2014, on 28 July, 2014
websites were not only ordered to refrain from broadcasting the India-England 2014 Test Series,
but the Department of Telecommunications was ordered to direct ISPs to block the websites
altogether and any other website which may infringe their rights.
Obligation under IT Act
Moreover, IT Act also permits a body corporate to collect information when it is for a lawful
purpose connected with a function or activity of the body corporate or any person on its behalf
and the collection of the sensitive personal data or information is considered necessary for that
purpose.
18

The Court of Justice of European Union in Promusicae v. Telefonica,
19
where the question
raised was whether an ISP provider is obliged to disclose the identity of several of its customer
allegedly involved in a copyright infringement. The court held that effective protection must be
provided to industrial property, in particular copyright by member states. It further held that
disclosure is not limited to national security or criminal prosecution but it includes cases
involving the protection of the right to property or situations in which authors seek to obtain that
protection in civil proceedings and observed that it is up to the Member States to strike a fair
balance between the various fundamental rights, including the right of privacy on the one hand
and the rights of protection of property. This case was reaffirmed by CJEU in LSG v Tele2
20
,
which was a similar matter referred to from the Australian Supreme Court.
In the present matter all the rights associated with the upcoming movie was with Wind
Entertainment. The petitioner action of downloading the pirated songs of the movie has caused

18
Information Technology (Reasonable security practices and procedures and sensitive personal data or
information) Rules, 2011.
19
Promusicae v Telefo nica [2008] ECR I-271.
20
[2009] ECR I-01227.
the infringement of the intellectual right of the owners. Therefore the action of the respondent of
providing the information to their sister company was in no way in violation of right to privacy
as the petitioner is liable for infringing the copyrights of the sister company.