In the latest in what seems to have become a trend in Indian courts, Phantom Films have been granted a John Doe order by the Bombay High Court for blocking sites that ‘may’ be pirating its movie, Masaan. We have covered the issue of ‘John Doe’ orders here, here here, and here.
Phantom Films had stated herein that it had come across dormant links which offered a “facility of free download” of its movie across websites. It then argued that while these currently remained dormant, as per its experience, they would become active soon after the release of the movie. Once that happens, it argued, it will be practically impossible to monitor downloads therefrom. Phantom Films disclosed this list to the Court, though it was not made public.
On the basis of this argument, Phantom Films was given the John Doe order against ‘unnamed entities’, being ‘John Does’, while Sonali Cable Vision, SpectraNet, Manish Realties, Macassar Productions, and Shikhya Entertainment were listed as parties.
Though the judgment itself is not individually aberrant, what is problematic is the fact the underlying trend. Our Courts seem to be making a habit of giving out John Doe orders on the basis of the ‘likeliness’ or ‘possibility’ of piracy, with a very minimal standard of evidence. As the order itself mentions, “Our Court, like several other High Courts, has passed similar orders based on apprehensions of a breach of copyright.” What the order does not mention is any analysis or questioning of the list of links submitted to the Court, only mentioning that they have been disclosed. The order is open-ended, with very little by way of ‘restrictions’ on who exactly qualifies as ‘John Doe’, against whom the order would be valid, and substantially ignores the specific guidelines for such orders set out in the British case of Bloomsbury Publishing Plc v. Newsgroup Newspapers.
Thus, the Indian John Doe order regime is one where, on the basis of minimal evidence and even a minimal analysis of this evidence, the Plaintiff is actually given immense powers over blocking of websites – do note, websites, not just webpages – on the basis of a ‘potential’ infringement of copyright, all of this happening ex parte! So not only is there no one to argue against the Plaintiff, the very core of our adversarial system, even the court itself does not deem it necessary to look into the claims in any detail! The practice is heavily problematic, but it would seem that our Courts are intent on moving forward with this regime despite its very fundamental legal flaws – arguably, all because it is a question of the Moby Dick of the digital age, combating online piracy.
This regime is like an expanding castle of tumour, set within the intricate machine of the legal system, fed by and feeding its existing infirmities such as the very nature of ex parte proceedings and interim injunctions. Their existence weakens the core of the structure itself, making it susceptible to errors and failure, the consequences of which will radiate across the entirety of our legal system.
The full order is available here.
I don’t see anything inherently wrongwith a John Doe order especially in copyright infringement cases of media/movies/sport events and the like.’Quia timet’ actions as these fall into are crucial in protecting the imminent future loss that the plaintiff might suffer if Interim Injunctions are not granted.The case in the point is the movie -Singham which actually quantified the benefits reporting a 60% decrease in piracy pursuant to the John Doe order which in nature is ‘cease and desist’.In fact Indian courts are still pretty much reserved in passing such orders .In contrast those in USA ,as in case of Warner Bros.the courts passed similar order against publishing of Harry Potter lexicon appreciating imminent danger to the Plaintiff’s interest in the future.