Tag Archives: LexCounsel

ILN Today Post

GLOBAL TAKE-DOWN OF DEFAMATORY CONTENT BY ONLINE PLATFORMS

An intense international debate is on relating to merits of global blocking of offensive and defamatory content including any URLs/web links/videos uploaded from global domains by online platforms such as Facebook Inc., Google Inc., YouTube LLC, Google Plus, Twitter etc. (the “Online Platforms”). This interesting issue was recently considered in detail by the Hon’ble Delhi High Court in the matter of Swami Ramdev and Anr. vs. Facebook, Inc. and Ors. [CS(OS) 27/2019].

Facts of the Case: The petitioner Swami Ramdev approached the Delhi High Court to inter alia seek a permanent and mandatory injunction against the Online Platforms for disseminating various defamatory remarks and information including videos, based on a book titled “Godman to Tycoon – The Untold Story of Baba Ramdev”. Though an interim order was granted by the Delhi High Court on January 24, 2019, directing removal of the offending URL and weblinks for the Indian domain, the question whether the said content was to be blocked globally was deferred for determination. The Court thereafter separately considered “what would constitute removal or disabling access within the meaning of section 79 of the Information Technology Act, 2000 (“IT Act”)? And can removal or disabling access be geographically limited or should it be global?”.

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Mandatory to Give Reasons for Refusal of Trade Mark Registration

In a recent judgement delivered by the Delhi High Court vide its order dated October 16, 2019 in the case of Intellectual Property Attorneys Association vs The Controller General of Patents, Designs & Trade Marks & Anr. [W.P.(C) 3851/2019], the High Court has observed and clarified that the Registrar of Trade Marks (“Registrar”) is duty bound to send a copy of the order containing the grounds for conditional acceptance or refusal of the application for registration of trade marks under the Trade Marks Act, 1999 (“Act”).

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RELEASE OF THIRD-PARTY ASSETS PERMITTED DURING MORATORIUM UNDER THE BANKRUPTCY CODE

Can you rescue your raw materials or unfinished products from a company after it goes under insolvency?

The answer is yes, as held by the National Company Law Tribunal (“NCLT”), Chandigarh Bench.   

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EMPLOYEE AND WORKMEN DUES ARE NOT PART OF LIQUIDATION ESTATE – TO BE PAID ON PRIORITY

Judgment: State Bank of India v Moser Baer Karamchari Union [Company Appeal (AT) (Insolvency) Number 396 of 2019]

Forum: National Company Law Appellate Tribunal (“NCLAT”).

Judgments delivered on: August 19, 2019.

Act/Law: The Insolvency and Bankruptcy Code, 2016 (“Code”).

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Regulation and Certification of Digital Media and Entertainment Platforms

The Ministry of Information and Broadcasting (“MIB”) has sought to undertake the ginormous task of regularising and certifying the content available on various entertainment platforms and digital media in general, more particularly referred to as the over the top platforms (“OTT”). The Minister of MIB, Mr. Prakash Javadekar, during a conference with members of the Central Board of Film Certification (“CBFC”) and the Film Industry, on August 31, 2019, stated that the MIB would soon call for talks with the major stakeholders of the prevalent OTTs, including Netflix, Amazon Prime Now, Hotstar etc. as also with members of civil society, technical community, media and legal experts, in order to discuss and formulate a concrete mechanism of certification and regularisation of the content available on such OTTs.

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End of the Road for Private Cryptocurrencies in India – the Proposed Ban

With more and more investors being attracted to invest in virtual currencies with their astonishing highs and painful lows, the
cloud of confusion with regard to recognition and regulation of such currencies under Indian laws loomed. The nuances and
legal status of virtual currencies under Indian laws including various directions issued by the Reserve Bank of India (“RBI”)
on virtual currencies have been extensively discussed in our previous articles1,2.

Lex8219-4.pdf

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Changing Landscape of the E-Commerce Sector vis-à-vis the FDI Policy

E-commerce has seen exponential growth in India since the issuance of press note 2 of 2000 by the Government of India permitting 100% foreign direct investment (“FDI”) in Business to Business (B2B) e-commerce activities. With the growth came deviations and the Government received many complaints about certain marketplace platforms violating the policy by influencing the price of products and indirectly engaging in inventory based model, which is not otherwise permitted. The Government issued another press note dated December 26, 2018 (“Press Note”) to introduce certain changes to the FDI policy in the e-commerce sector. Coming into effect from February 1, 2019, this Press Note has had far-reaching implications on e-commerce entities (with FDI) operating in India, requiring them to significantly overhaul their existing business model to comply with the current FDI Policy. Reportedly various e-commerce giants like Amazon sought an extension for compliance with this Press Note, however, no such extension was granted, and this Press Note became effective on February 1, 2019.

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Supreme Court Re-Affirms the Entitlement of Teachers to receive Gratuity

The Hon’ble Supreme Court of India, in its judgment pronounced on January 7, 2019 in the case of Birla Institute of Technology vs. State of Jharkhand [Civil Appeal No. 2530 of 2012] (“BIT Case”), had held that teachers were not employees for the purposes of Payment of Gratuity Act, 1972 (“PG Act”) and therefore not entitled to receive gratuity. We had discussed the implications of the BIT Case in our earlier article titled ‘Payment of Gratuity to Teachers’.

Interestingly, on January 9, 2019, the Hon’ble Supreme Court, suo moto listed the matter and stayed the operation of its judgment in the BIT Case stating that the court had not been apprised of the retrospective amendment to the definition of “employee” in the PG Act vide the Payment of Gratuity (Amendment) Act, 2009 (“PG Amendment Act”). The Hon’ble Supreme Court observed that:

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Supreme Court Re-Affirms the Inclusion of Allowances for Determining Provident Fund Contributions

The Hon’ble Supreme Court of India vide its judgment passed on February 28, 2019 in the case of The Regional Provident Fund Commissioner (II) West Bengal vs. Vivekananda Vidyamandir and Others (clubbed with certain other civil appeals) has re-affirmed the position concerning treatment of allowances for determining the provident fund contribution.

The common question of law which was raised by the appeals for determination by the Hon’ble Supreme Court was whether the special allowances paid by an establishment to its employees would fall within the ambit of the expression ‘basic wages’ under section 2(b)(ii) read with section 6 of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 (“EPF Act”), for computation of deduction towards provident fund contribution.

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BACK DOOR ENTRY OF THE DEFAULTING PROMOTERS – INAPPLICABILITY OF SECTION 29A OF INSOLVENCY & BANKRUPTCY CODE

With the introduction of the Insolvency & Bankruptcy Code, 2016 (“Code”), there has been a flurry of litigation before the National Company Law Tribunals (“NCLT”) and the National Company Law Appellate Tribunal seeking initiation of corporate insolvency resolution process with respect to companies in default of debt. The Code being a new legislation is not without loopholes. As a result, the Code has already undergone amendments within a short span of time to eliminate such ambiguities and achieve the real objective of the Code.

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