Something’s phishy – Wakeup Call for Recruiters !

One of the leading lawyers of India, Diljeet Titus, has analysed, in the Economic Times, the landmark judgment in the case of National Association of Software and Service Companies vs Ajay Sood & Others, delivered in March, ‘05, wherein the Delhi High Court declared `phishing’ on the internet to be an illegal act, entailing an injunction and recovery of damages. The case involved a placement agency involved in head-hunting and recruitment.

Without reproducing the whole article, the operative part that is most relevant to our profession is given hereunder. Sourcing being and integral part of our profession, I would request comments from all as to what they are doing to adhere to such norms and what we could do, as a profession, to incorporate certain self-regulatory norms so that we do not end up like the telemarketing companies – who are now being regulated excessively the worldover.

The Delhi HC stated that even though there is no specific legislation in India to penalise phishing, it held phishing to be an illegal act by defining it under Indian law as “a misrepresentation made in the course of trade leading to confusion as to the source and origin of the e-mail causing immense harm not only to the consumer but even the person whose name, identity or password is misused.” The court held the act of phishing as passing off and tarnishing the plaintiff’s image. The plaintiff in this case was the National Association of Software and Service Companies (Nasscom), India’s premier software association.

The defendants were operating a placement agency involved in head-hunting and recruitment. In order to obtain personal data, which they could use for purposes of head-hunting, the defendants composed and sent e-mails to third parties in the name of Nasscom.

The high court recognised the trademark rights of the plaintiff and passed an ex-parte ad interim injunction restraining the defendants from using the trade name or any other name deceptively similar to Nasscom. The court further restrained the defendants from holding themselves out as being associates or a part of Nasscom According to the terms of compromise, the defendants agreed to pay a sum of Rs1.6 million to the plaintiff as damages for violation of the plaintiff’s trademark rights. The court also ordered the hard disks seized from the defendants’ premises to be handed over to the plaintiff who would be the owner of the hard disks.

This case achieves clear milestones: It brings the act of “phishing” into the ambit of Indian laws even in the absence of specific legislation; It clears the misconception that there is no “damages culture” in India for violation of IP rights; This case reaffirms IP owners’ faith in the Indian judicial system’s ability and willingness to protect intangible property rights and send a strong message to IP owners where they can do business in India without sacrificing their IP rights