By Priya Adlakha and Kiratraj Sadana
The Hon’ble High Court of Delhi vide two separate orders dated May 28, 2020 has restrained online web portals, OLX India and Quickr, from publishing fraudulent job advertisements containing the name and trade mark of Reliance Industries Limited.
Brief Background
The case of the Plaintiff i.e. Reliance Industries Limited is that it is the owner of the trademarks and trade names JIO and RELIANCE.
The Defendants in the two cases, OLX India B.V. and Quikr India Pvt. Ltd., are engaged in the business of operating web portals which publish classified advertisements for buying and selling of goods and services. The Defendants’ websites also operates as a platform for posting job vacancies.
Plaintiffs came across various fake links /advertisements, which were fraudulently offering jobs on the websites operated by the Defendants, olx.in and quickr.com, when they received complaints from various individuals, who had applied for a vacancy posted on the websites operated by the Defendants.
Plaintiff’s Contentions
In both the suits, titled Reliance Industries Limited & Anr. v Quikr India Pvt. Ltd.[1]and Reliance Industries Limited & Anr. v OLX India B.V. & Anr[2]., the Plaintiff had similar contentions.
Case against Quikr
In the case against Quikr, the Plaintiff contended that there were fake and fraudulent advertisements available at the Defendant’s web portal, quickr.com, which are luring innocent job seekers into fake and fraudulent assurances for jobs and also infringing the Plaintiffs’ registered trade marks and trade names, JIO and RELIANCE including their variations.
The Plaintiff also filed documents to show that two persons were lured by such advertisements and they were issued fake job letters after payment of fees. The Plaintiff further brought in front of the Court that Quikr charges its customers on the basis of the facilities it provides.
Case against OLX
Against OLX, the Plaintiffs had contended that immense harm and injury had been caused to the Plaintiff’s goodwill and reputation due to the fake and fraudulent advertisements being published on the Defendant’s website, olx.in, under the various words such as JIO JOBS, RELIANCE TREND JOBS, etc., infringing Plaintiffs’ registered trade marks JIO and RELIANCE.
Plaintiffs further contented that a number of job seekers are duped, and money was being extorted from them under the pretence of job. Plaintiffs provided four such fake and fraudulent links in the plaint.
Quikr’s Contentions
The Counsel for Quikr stated that the listing on their portal is automatic. In view of the large number people posting their advertisements on the portal and the system being auto generated, the Defendant has no mechanism to ascertain the authenticity of the third parties.
The Defendant stated that as and when any party lodges a complaint with regards to an advertisement posted on their portal, the Defendant pulls down the said advertisement.
The Counsel further stated that in view of the Defendant’s being informed about the two URLs posted on the defendant’s website are fake, the defendant would immediately pull down the two URLs.
OLX’s Contentions
The Counsel for OLX stated that out of the 4 URLs pointed out by the Plaintiff, 3 have been removed and the technical team of the Defendant is in the process of removing the 4th URL and the same will be removed from their portal within 24 hours.
The Counsel further stated that the Defendants have added filters with the words JIO and RELIANCE so that in future their platform cannot be used to defraud the job seekers and to infringe the Plaintiff’s trademarks and trade names.
Delhi HC holds Quikr/OLX liable for posting Fraudulent Jobs without due diligence
In the suit against Quikr, the Hon’ble Court observed that the Defendant is not running its portal for charity but to earn income, therefore its plea that it has no mechanism to ascertain the authenticity cannot be accepted.
The Court further observed that it is for Quikr to decide whether it needs to change its policy or not. The Court held that any action of the defendant which has a cascading effect not only on the plaintiffs’ right in the trademark, copyright etc. but also effects the gullible job seekers has to be with sufficient due diligence and in compliance with the relevant provisions.
As regards to the interim injunction, in both the cases the Court held that the Plaintiffs have made out a prima facie case in their favour and in case the interim injunction in not granted in their favour then the Plaintiffs will suffer irreparable loss. Furthermore, the balance of convenience was also in the favour of the Plaintiffs.
Therefore, in both the cases the Court restrained the Defendants, their agents, servants, affiliates from putting on their portals any advertisement containing the name/mark JIO and RELIANCE with its variations and/or any other mark, logo which is deceptively/confusingly similar to the plaintiffs’ registered trademarks JIO and RELIANCE till the next date of hearing.
The Court has listed the matter for next hearing on September 21, 2020. The High Court has also asked OLX India and Quikr India to file their written statement in response to the suit and added that the affidavit would indicate the “process implemented by them as also the due diligence carried out and precautions taken so that the platform of the defendants is not misused and illegal advertisements posted thereon“.[3]
Intermediary Liability and “Due Diligence” by Online Platforms
The Indian judiciary in now determining the liability of online platforms by interpreting the term ‘due diligence’ under Section 79 of the Information Technology Act, 2000. Earlier, the online portals providing listing services used to escape the liability citing that they are just intermediaries and are practising due diligence as mentioned under Section 79 of the Information Technology Act, 2000.
However, the recent trends, including the Dynamic Injunction by the High Court of Delhi in the case titled UTV Software Communication Ltd. v 1337x.to and Ors.[4], shows the shift in the Indian jurisprudence in relation to intermediary liability which is now looking in what exactly are these reasonable precautions/due diligence that these intermediaries are taking.
It would be interesting to see this intermediary liability interpretation in the next hearing of this case. Keep watching this space for updates on the same.
[1] CS(COMM) 143/2020
[2] CS(COMM) 144/2020
[4] 2019(78)PTC375(Del)
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