In yet another instance of overbroad and disproportionate online censorship, 2650 entire websites have been ordered by the Madras High Court to be blocked, nation-wide, as an interim measure against the infringement of copyright of certain films. The Madras HC, on July 21, 2017 and August 2, 2017, ordered an interim injunction against several Internet Service Providers (ISPs), in a case of copyright infringement, directing the ISPs to disable access to websites upon the plaintiff’s request, including, perplexingly, the Internet Archive, an online library of public domain works, which also hosts an archive of more than 20 years of the World Wide Web. Any person attempting to access any of the specified websites now gets a message stating that the website has been blocked as per the directions of the Department of Telecom, Government of India (which is incorrect, as the blocking has taken place pursuant to a court order, not a government direction).
The suits for copyright infringement have been filed by Prakash Jha Films, in respect of Lipstick Under My Burqa, as well as by Red Chillies Entertainment, in respect of the film When Harry Met Sejal. While the Orders are not available from the Madras HC online portal, Medianama was able to obtain copies, which are available here and here.
This is not the first time that courts in India have enjoined ISPs in a quest to thwart online piracy. The Delhi, Madras and Bombay High Court have repeatedly used such ‘blocking injunctions’ as a blunt tool in their arsenal for fighting piracy. This blog reported the incident of induna, a website selling licensed CD’s and DVD’s, being blocked by ISPs following a John Doe order against it. However, in the back and forth between the rights holder and the ISP or the infringer, the right of the public to access the internet is being severely curtailed, without courts giving much thought to the manner in which their orders are carried out, or whether they are necessary or proportionate.
Ashok Kumar in the Bollywood Hall of Infamy
The Orders, which are largely identical, direct 37 ISP’s to ‘restrain from infringing’ the films, and to block the list of 2650(!) websites provided by the plaintiffs, upon receiving notice of such websites from the producers/film studios. The Order also operates against cable operators as well as certain unknown defendants, impleaded by the court as ‘Ashok Kumar’.
An ‘Ashok Kumar’ or a ‘John Doe’ order, is an order in a suit brought against unknown and unnamed defendants, to counter the possibility that someone, somewhere, may possibly be infringing upon the rights of the plaintiff. Ashok Kumar orders have become the go-to tool for overzealous plaintiffs seeking copyright protection from the Court in respect of online infringement, by claiming the difficulties in identifying the infringing parties. There are several problems with the Order of the Madras HC, which are common to most such Ashok Kumar orders issued by courts in India.
- Ex – Parte – The Orders appear to have been passed ex parte, without any of the defendants haven been given a hearing or the chance to put forward their defence. Such orders should only be passed in highly exigent circumstances, and must follow guidelines issued by the Supreme Court of India. However, the Order does not give any details as to why such an order was passed ex parte, not only against the unknown defendants, but against the ISP’s as well.
- Standards for injunction not satisfied – The Orders do not specify at all whether the standards for issuing an injunction are satisfied, namely, the plaintiff must have made a prima facie case, with some evidence of infringement; the balance of convenience must be in favour of blocking the websites as against the interest in keeping them accessible, and the plaintiff must show irreparable injury arising from the infringement. However, the Orders do not make any such determination, instead proceeding simply on the basis of the plaintiff’s claim.
- Overbroad and disproportionate – The Orders direct ISPs to block entire websites, instead of specific, identified URL’s. The requirement to specify infringing works while issuing a blocking injunction has been noted both by the Bombay High Court as well as by the Madras High Court, however, the present orders pay no heed to this. Further, the Orders direct ISP’s to block websites which host content ‘relating’ to the plaintiff’s copyrighted material. As far as I am aware, a plaintiff only has specified statutory rights under Section 51 of the Copyright Act, and cannot claim any cause of action against any content ‘relating to’ their works. The Internet Archive being blocked is a good example of the overbreadth of the Orders. The Archive does not host video content which is not in the public domain, but only captures HTML web pages as part of an archiving process. It is difficult to identify any claim which the plaintiffs can have in respect of copyright in their films, against the archiving of web pages.
- Unclear legal basis – Despite the practice of issuing Ashok Kumar Orders having been adopted by courts in India as early as 2003, the legal basis for directing ISP’s under this Order is unclear. The Copyright Act, 1957, in Section 52(1)(b), clearly exempts ‘mere conduits’ (which includes ISP’s), which provide Internet access, from liability in respect of any infringement. Therefore, the ISPs themselves cannot be held liable for infringement of the films. However, the courts still possess the inherent power, under Section 151 the Code of Civil Procedure, to make such orders requiring the assistance of third parties to ensure the efficacy of their order. The Court of Appeal in the UK recently confirmed the inherent power of UK courts to issue directions to ISP’s who are not actual defendants. However, there is no jurisprudence on the specific issue in India, which leaves us guessing (in some trepidation) as to the scope of this power.
Curtailing Online Access
The trend of wantonly issuing directions against ISP’s and making them liable or responsible for removing infringing works has the potential to severely curtain access to online content. Most ISP’s are private, for-profit corporations, whose course of action is necessarily the one entailing least economic costs. As such, ISP’s already have more of an incentive to be overbroad in their compliance with copyright law, to avoid any possibility of liability accruing on themselves. In this scenario, ISP’s are unlikely to put up much of a defence against court orders requiring them to block access to online content and services. The plaintiffs in these cases, the rights holders, similarly have an incentive to obtain as broad an injunction as possible (although it is disappointing that the producers of Lipstick under my Burqua, after a massive publicity campaign against censorship, did not choose to be more cautious in asking for online censorship). The biggest impact of such orders is on the users of online services – for example, the author of a legal work whose creation is removed, or the users trying to access a website that hosts legal content.
There have been efforts to buck the trend, and develop the jurisprudence around the court’s power in issuing blocking injunctions. In particular, this blog reported Justice Gautam Patel’s judgements from the Bombay High Court, which were circumspect with blocking websites on the asking of the plaintiff, and which laid down guidelines on which blocking injunctions should be granted, and also introduced a remedy for third parties affected by the order and who may want to challenge it. The Court also recognised the implications to public interest in these private copyright disputes, noting that:
“It is no longer possible for Plaintiffs to now come and expect to get sweeping orders just for the asking. I expect a far higher standard of care. I understand that the Plaintiffs are anxious to protect their copyright. As against that, there are other public law rights of wider import that Courts must protect. I have very little doubt as to which is the more important.”
The Court also took a cue from academics, and suggested the idea of a neutral third party, who could verify the links suggested to be infringing by the plaintiff and also provide a simplified and expeditious forum for resolving disputes which may arise between third parties and the plaintiffs or ISPs.The Bombay High Court’s course correction was a significant departure from the existing practice, and a step towards developing jurisprudence around the issue of blocking injunctions. However, as the present orders Orders show, courts still choose to act heavy-handedly while dealing with claims of intellectual property infringement, and unfortunately, the Courts charged with protecting the interests of the online community do not seem to take into account the aspect of public interest involved in being judicious with the use of a power to curtail Internet access.