Delhi High Court’s John Doe Order in Favour of Star News: Need for a Third-Umpire Review of ISP Liability?

The Delhi High Court, on 28^th July 2014, passed an Ex Parte Ad Interim Order in favour of Star India Ltd wherein over a hundred 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 [Find the order here]. In this post I look at the law surrounding the liability of ISPs to block copyright infringing content.

Star India made news in 2013 in the famous ‘SMS Rights’ case, where the Delhi High Court held that Star India cannot claim exclusive rights to disseminate match information under the Hot News doctrine (see the superbly analysed decision of the court here). The same company has now approached the Delhi High Court again in order to crack down on over  one hundred websites (which they term “Rogue Websites”) which illegally broadcast, re-transmit, host and stream the content of the 2014 India-England Cricket Matches “and related content thereto”. By doing so, it has been argued that these websites eat into the substantial revenues that Star India expects to earn through internet broadcasting. Further, they have contended that there is a public interest angle to this litigation as such Rogue Websites collect confidential information about registered users and use it to gain illegal access to the contents of a user’s computer system. Star India has claimed that these websites which often “operate under a veil of secrecy” are “fearless entities” which are “not obliged to follow any orders of any Court”. These websites also allegedly hide behind domain privacy services offered by various domain name Registrars, making them difficult to contact.

For these reasons, Star News prayed that the 100+ websites plus other similar websites be blocked by the ISPs. They contended that blocking individual URLs which contain infringing content will not suffice as the websites can always broadcast the infringing content under a different URL. Therefore, they joined the DoT (Department of Telecommunications) and the DEITY (Department of Electronics and Information Technology) as a defendants so that the ISPs may block the websites altogether.

Justice Manmohan Singh of the Delhi High Court has given a rather confusing Ad-Interim order wherein two reliefs are granted- first, the defendants are restrained from in “any manner hosting, streaming, broadcasting, rebroadcasting, retransmitting, exhibiting, making available for viewing and downloading, providing access to and / or communicating to the public, (including to its subscribers and users), through the internet, in any manner whatsoever, the plaintiffs’ broadcast”; and second, “The defendant Nos. 50 and 51(DoT and DEITY) are directed to ensure and secure compliance of this order by calling upon the various internet service providers registered under it to block access to the various websites”.

The first relief, although strongly worded, would be sufficient to curtail copyright infringement. This by itself would make the second relief superfluous. It is the second relief which mandates that such websites are altogether blocked by ISPs (on an order from the DoT) is not only excessive and violative of Art.19(1)(a) of the Constitution, but goes beyond the intent of the Copyright Act itself.

Star News argued that the license agreement between the DoT and the ISPs ordinarily provide that the ISPs shall not carry content that infringes intellectual property. This makes ISPs responsible for not allowing copyright infringement. However, S.52(1)(b) of the Copyright Act reads that the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public  shall not constitute copyright infringement. This provision has expressly been inserted in the Copyright Act in 2012 to prevent ISPs from being held liable for copyright infringement.

This brings to light how license agreements between the DoT and ISPs have placed an added burden on the ISPs to tackle copyright infringement, which is clearly beyond what is contemplated by the Copyright Act. It may be argued that there is a difference between an ISP being held liable for copyright infringement by itself, and holding the ISP responsible for preventing copyright infringement when it is within its power to do so (which is what the license agreement seeks to do). Such a dichotomy is expressly mentioned, for example, by the European Commission’s E-Commerce Directive where Art.8(3) provides that Member States must ensure that right-holders are in a position to seek injunctive relief against ISPs when the latters’ services are being used for copyright infringement. This has since been made part of the UK’s statutory framework through amendments to the Copyright, Designs and Patents Act, 1988. There is no such statutory mandate for ISPs in India to undertake such an obligation. [See Mr. Ananth Padmanabhan’s wonderful analysis on this issue here.] However, there is no statutory bar against imposing such a contractual liability either.

Therefore I unfortunately cannot argue that the order of the Delhi High Court is incorrect per se, as it only asks the DoT to enforce its license agreement against the ISPs (ISPs are therefore only exposed to contractual liability if they refuse to comply). With no express statutory bar against such a contractual provision, it is difficult to argue that such a provision is illegal. However, I do believe that there is a case for arguing that this provision is unfair. The relevant provision of the sample license agreement between the DoT and ISPs is reproduced as follows:

“The LICENSEE shall take necessary measures to prevent objectionable, obscene, unauthorized or any other content, messages or communications infringing copyright, intellectual property etc., in any form, from being carried on his network, consistent with the established laws of the country”

This contractual provision is problematic as it places the ISP in the difficult position of judging whether any content that is carried through it is infringing of copyright. As copyright infringement analysis is often not straightforward, this may prompt ISPs to err on the side of caution when blocking websites. This is perhaps one of the reasons why the Copyright Act gives ISPs immunity from copyright infringement in the first place. This cannot even be written off as an agreement between private parties as the DoT is the Government Regulatory Authority and ISPs are required to accept these terms if they are to be granted a license. This reeks of undue influence to me. Therefore, the effect of such a provision is allowing the State to do indirectly what it cannot do directly (which is holding ISPs responsible for cracking down on copyright infringement). I hope to see some action being taken about this.

What is especially worrisome is that this decision follows the heels of the Ashok Kumar case (which we blogged about here) where 219 websites were ordered to be taken down for violating MSM Satellite’s exclusive broadcasting rights of the FIFA World Cup. In that decision as well, the Court directed the DoT/DEITY to ensure that ISPs block the websites (although that decision did not specify any license agreement). The harsh measures taken to curtail illegal streaming ends all discourse on restrictive licensing practices and whether the harms as contemplated by these broadcasters are actually proportionate to the measures taken. This is yet another case where Copyright may have won but at the cost of creating a chilling effect on free speech.