Copyright

Tatas get temporary reprieve from Bom High Court and Justice Patel endorses academic suggestion


images (3)As our readers may recall, Justice Patel of the Bombay High Court had, earlier this month, rejected an application by Tata Communications Limited (TCL), an internet service provider, for modification of its John Doe order in the Dishoom case and ordered it to comply with the order. The application had sought permission to display a generic error message on the blocked URLs instead of a customized one for each particular order as directed by the court. The reason cited by TCL for this request was that it was “technically not feasible” to display these customized messages. Subsequent to the rejection, TCL submitted another application proposing a new format of the error message. The court, in its order dated August 12, 2016, has now made a slight allowance on this application, subject to certain conditions.

Background

In the Dishoom John Doe order passed on July 26, 2016, while allowing the blocking of certain verified links/pages instead of the entire websites, Justice Patel had laid down certain safeguards for the protection of the rights of the adversely affected third parties. This came in as a huge relief for websites like Induna that sell original DVDs. Among other things, it directed the ISPs to display a detailed special error message on the blocked URLs that refers to and includes the following information:

(a) …the relevant provisions of the Copyright Act, 1957 that prescribe penalties for offences of copyright violations (mentioning specific sections, prison term and amounts); and

(b) …this order by its date, the suit number and the details of the present Suit. It is not necessary to reproduce the entire order. It is sufficient to state that the block of that particular link is authorised by this order. The suit number must be correctly mentioned.

(c) A statement that any person aggrieved (i.e., not merely Defendants Nos. 1 to 42) by any such block may directly approach this Court with at least 48 hours’ notice to the Advocates for the Plaintiffs (whose address is also to be given) for a variation or modification of this order in relation to that particular URL or web link.

On August 9, 2016, TCL filed an application before the court for the modification of this directive claiming that it was technically infeasible to display customized error messages. It sought permission for putting up a generic message stating only that the page has been blocked under the orders of the Competent Authority. The court summarily rejected the application noting that the customized messages could be displayed in “utterly obvious” ways and “[i]f … [TCL] can display an alternative page with one line (‘blocked under orders of the Competent Authority’), then it can surely display a page with more substantial and meaningful text”. It noted the importance of publishing this detailed information on the blocked URL in the following words:

Obviously, this direction was necessary in the public interest. It was intended to ensure that persons who came upon a blocked URL learned of the reasons for that block; were told of the order that directed the blocking; learned of the various provisions of the Copyright Act, 1957, and the penalties it prescribes; and perhaps most important, were told which Court to approach and in which matter for redress. This was essential because conceivably the block might affect parties not arrayed as defendants to this John Doe action.

TCL’s renewed application and the court’s reluctant partial allowance

Rather than complying with the court’s direction, TCS submitted a renewed application wherein it again submitted that it was technically impossible or at least difficult to customize each error page on a per-order basis. Justice Patel, in the order dated July 12, 2016, refused to accept this submission and noted that “I should imagine there is no problem at all in invoking or ‘calling’ a particular script or module whether in any web page rendering technology, and that module containing case-specific information and data.

He, however, reluctantly allowed TCL to display the following message proposed by it, which is slightly more generic than the one directed by the court to be displayed:

This URL has been blocked under the instructions of the Competent Government Authority or in compliance with the orders of a Court of competent jurisdiction. Viewing, downloading, exhibiting or duplicating an illicit copy of the contents under this URL is punishable as an offence under the laws of India, including but not limited to under Sections 63, 63-A, 65 and 65-A of the Copyright Act, 1957 which prescribe imprisonment for 3 years and also fine of upto Rs. 3,00,000/-

Any person aggrieved by any such blocking of this URL may contact [*] at [**] (nodal officer detail) who will, within 48 hours, provide you the details of relevant proceedings under which you can approach the relevant High Court or Authority for redressal of your grievance.”

This error message contains the relevant provisions of the Copyright Act and also the statement that the aggrieved person can approach the court for grievance redressal. But it does not mention the details of the order under which the URL has been blocked. It instead provides the contact details of a nodal officer appointed by TCL who will provide the details of the order to any aggrieved person who contacts him. Even though Justice Patel expresses incomplete satisfaction with this generic message, which he calls “by no means optimal”, he considers it worth attempting. In his words:

if it allows for greater efficiency and speed in implementation, I am willing to consider it, given that such matters are extremely time-sensitive, and speed of deployment is of the essence.

He, however, subjected this order permitting display of this more generic message to certain conditions. The first one being that the designated Nodal Officer must provide the details of the order strictly within 48 hours of an e-mail request made to him; and the second being that he must also send a copy to the advocates of the plaintiff, Eros International.

The order made it abundantly clear that the court’s earlier direction on customized error messages stood modified, as of now, only with respect to TCL, the only ISP among all ISP defendants that sought the modification. Also, the order is to operate only till September 19, 2016, when it will be revisited by the court.

Reference to Prof. Basheer’s recommendation of a neutral third-party body

In an earlier post, Rahul had noted how Justice Patel, in the GGM case, had laudably embraced academic suggestions (made by two writers at SpicyIP) for bettering John Doe jurisprudence. In this order too, Justice Patel has referred to an extremely insightful article in the Mint newspaper by Kian Ganz of Legally India, noting as below:

Extremely well-researched, thoughtful and incisive, the article covers a range of issues related to online piracy. It mentions the recent John Doe orders in the Great Grand Masti and Dishoom cases, and the number of websites blocked, which Mr. Ganz describes as potentially huge. A startling statistic follows: that between January and December 2014, as many as 2162 URLs were blocked under Court orders, several times more than those ordered by the Government. This underscores the sweeping nature of this jurisprudence.

In particular, Justice Patel took note of an academic suggestion made by Prof. Basheer, who was quoted by Kian Ganz in his Mint article as below:

“….We should have a neutral third-party body, an ombudsman of sorts”, which could verify individual links and also more efficiently deal with websites like Induna that have apparently been blocked erroneously…..The body could be financed by content owners and telecommunications providers, so no one side has a unilateral interest or stake in it…”

Justice Patel endorses the suggestion for a neutral ombudsman above and notes in his order as below:

Mr. Ganz quotes Prof Shamnad Basheer, arguably the country’s foremost academic authority on matters pertaining to intellectual property and information technology, as recommending a neutral ‘ombudsman of sorts’, a third-party body. While the suggestion in the article to pull cases out of the Courts is one of which I confess I am not entirely convinced, the idea of an ombudsman to serve not only as a watchdog but as some sort of a non-adjudicatory, self- regulatory body is indeed appealing. It is certainly an idea worth exploring and developing further. Undoubtedly, the concept will need a defined structure, a frame or terms of reference, guidelines, and so forth; but the merits of the suggestion are many. In my view, it is a seminal recommendation and one that should be acted on sooner rather than later. It is entirely possible that a body of this sort can prove to be of assistance to Courts as well. I will leave it at this, and leave it to the ISPs, to whom I request the Plaintiffs’ Advocates to circulate a copy of this order, to carry this further.”

This trend of drawing upon academic commentary and suggestions is extremely welcome and one hopes that we will see more of this in the future as well.

Image from here

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