John Doe orders for Blocking of Websites: Mad Dog without a Leash?

Of late increasing number of Bollywood filmmakers are seeking relief in terms of a John Doe order for blocking websites in anticipation of piracy before a movie release. Last month Megaupload and Filesonic were blocked by Reliance Communications (RCOM) pursuant to a John Doe order of the Delhi High Court prior to the latest release of its sister company, Don 2 (Kartik recently blogged on this here & here). The point enquiry in this post is three fold:

(i) Whether the reach of the John Doe order extends to Internet Access Providers (IAPs) such as the RCOM, AirTel?

(ii) Whether blocking of websites by IAPs suo moto violates the due procedure required to be followed? and

(iii) Whether IAPs can abuse their ‘dominant position’ if vested with powers to block websites?

Who is this ‘John Doe’?

The producers rely heavily on movie openings and fear that online piracy would dent theatre-goers. To plug any irreparable loss, they seek a relief of temporary injunction under Order 39 R1 & 2 read with Section 151 of CPC. In terms of these provisions, a John Doe order presupposes (a) an imminent possibility of leakage of the copyrighted material (b) causing huge financial losses (c) and hence an injunction against John Doe to restore balance of convenience. Bottom-line, there has to be a strong presumption that the unnamed person would cause losses unless injuncted. So far, the practice seems to be that the producer upon obtaining the injunction serves a notice to the IAPs directing them to block any website.

It is valid to argue that previous instances provide a clear indication of possible infringement from an internet source, thus justifying denial of access in anticipation. Moreover, the location of website outside India requires swift action instead of waiting for the ISP to respond. A file sharing website does provide the ‘means’ for infringement by allowing dissemination of content uploaded by users. The IAPs on the other hand are technologically capable of denying access to any website. Does this mean, ‘John Doe’ is someone providing access to infringing material? To my mind, it would be inequitable if the order were to be blindly directed at every entity with the means to or the capability to avoid infringement. Injunction against every ISP is tantamount to authorizing shutdown of the entire internet infrastructure. In other words, every producer can direct the IAPs to block any website pursuant a John Doe order.

Earlier this year, ESPN obtained a similar order injuncting ‘unnamed’ cable operators from indulging in unauthorized telecast of World Cup matches. Does this mean, any cable operator who does not have the necessary license becomes a party to the suit? Instead the Court gave ESPN the right to request local police authorities to inspect premises of any cable operator and equipment can be seized and attached if found accessing unauthorized feed. This further indicates that the remedy is primarily for one to iron out any suspicions and cause of action arises when any material fact is discovered in the course. Therefore, the yardstick for determining the class of John Doe should not be anyone who has the capacity to cause infringement but such entities with the infringing content and the intention to commit an unlawful act.

Undoubtedly the ISPs are profiting by allowing users to surf errant file sharing sites. In such a situation, it has to be seen if such persons owe any duty to the copyright owner. On this point, the Australian Federal Court in AFACT v. iiNet stated that ‘the law recognizes no positive obligation on any person to protect the copyright of another’. The copyright owner in this case argued that allowing P2Ps to commit infringement is tantamount to ‘authorization’ of an unlawful act. In response to whether IAPs are liable to block P2Ps, the Court drew a distinction between provision of ‘access’ to internet and actual ‘means’ of infringement through P2Ps and held that the access providers neither have control or connection with the latter.

If IAPs were to be liable, as was rightly argued elsewhere, then libellous and pornographic content should be weeded out too. It is if the reach of John Doe order extends to all IAPs without any evidence. Besides that, failure to detect particular source of infringement (i.e. a particular user of an internet service) does not justify blocking the entire website affecting innocent users. In essence, the access providers do not have any obligation to monitor the web without any notice of infringement.

What is it the due procedure for blocking websites?

Under the IT Act, however as the TOI report rightly points out, the appropriate authority for blocking websites is the Department of Information & Technology (DIT). The IT Rules, 2009(relating to ‘Procedure and Safeguards for Blocking for Access of Information by Public’) authorize the DIT to block websites and confers investigation powers for reasons connected with national security or public order or incitement of any unlawful activity as laid down in Section 69A of the IT Act. Additionally, the court exercising its ‘inherent powers’ under Section 151 CPC may grant any relief it deems fit in order to protect proprietary interests of plaintiffs from any irreparable harm, including blocking of websites.

Blocking of sites directly affects individual’s right to freedom of speech and expression under Article 19(1)(a). Logical corollary would mean that any denial of access should fall within the reasonable restrictions specified under Article 19(2). A John Doe order to block a website does fall within reasonable restrictions because refusal to do would be ‘contempt of court’, a ground under Article 19(2). Caveat here is that the right can be taken away only under the authority of and procedure established by the law.

In terms of above, an injunction against unnamed persons is not sufficient for the IAPs to block any internet source. Moreover, IAPs lack legitimacy in blocking website merely upon a notice from the filmmakers without any conclusive evidence of infringing activity. This is so because any allegation of any copyright infringement is purely a question of law and IAPs are not capable of determining the culpability of the errant website. It follows that the evidence has to be judicially examined before blocking any website. Therefore, unless there is an express direction from the Court or the DIT, the IAPs are not bound to block any internet source. A John Doe order only permits a copyright owner to seek action against any errant website by the IAPs upon authorization of the DIT and not to bypass the authority under the law. Clearly, RCOM wrongly assumed the authority to block websites based on the injunction order.

Take-down orders have an effect of curtailing fundamental rights. Therefore, ideally a judicial (or a quasi-judicial) body should determine the culpability of ISPs. Even the draconic anti-piracy measures such as the Three Strikes Policy provide for a mechanism of judicial redressal. In France for instance, the HADOPI, the government agency implementing the policy has three members of judiciary in the 9 member panel. The HADOPI is also vested with powers to investigate and it is the only authority to an ISP/IAP to remove any objectionable content. It appears that the present mechanism of blocking of websites fall short of constitutional standards.

Immunity to ISPs for Blocking Sites: Flood Gates to Anti-Competitive Behaviour?

A concern brewing in the U.S.’s Stop Online Piracy Act (SOPA) relevant here is the possibility of ISPs/IAPs manipulating their ‘dominant position’ to further own business interests. The growing convergence of media and telecom industries (in India too) can pose a threat in the context of blocking websites. Section 4(2)(b) of the Competition Act, 2002 prohibits dominant entities in indulging in practices which result in denial of market access ‘in any manner’ or using their position in ‘one market to enter into, or protect, other relevant market’. The phrase ‘in any manner’ has a wide connotation and could encompass any measure which unfairly affects the competitive position of any other person (not just its immediate competitors). Hence, it would not be naïve to allege that RCOM could use the tool of blocking websites to provide a competitive edge to its sister, the Big Cinemas.

Moving Forward

J. K. Rowling started this trend in 2002 seeking a John Doe order to protect the confidentiality of her book, the Harry Potter and the Half Blood Prince before its release. The Indian film industry is toeing the same line and this will soon go viral when all regional film industries approach High Courts for similar reliefs. This means a perpetual injunction against the internet if IAPs are allowed to shut down websites! The point I want to drive home is that the John Doe order is an ill-suited remedy for online piracy and censorship in this manner is inequitable.
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