The Delhi High Court’s decision in Home Box Office Inc. v. Streamzy.To attempts to strike a balance between the need to effectively combat online piracy and the concerns raised by increasingly expansive website-blocking orders. Explaining the order, Vikram Raj Nanda examines whether the Court’s approach marks a meaningful course correction in the law on dynamic injunctions, and whether its framework for involving ISPs and domain name registrars truly preserves their role as neutral intermediaries. Vikram is a fourth-year student at National Law School of India University, Bengaluru, with a keen interest in IP law, Competition Law, and Arbitration. His previous posts can be accessed here.
Dynamic Injunctions, Website Blocking, and the Limits of Section 79 of the IT Act: Analysing the Delhi High Court’s HBO Order
By Vikram Raj Nanda
Dynamic injunctions were meant to solve a recurring problem: several piracy websites repeatedly springing up through mirrors and redirect websites, despite court orders. Such injunctions allowed entities holding proprietary interests in the website to block new infringing domains without repeatedly approaching the courts requesting fresh injunctive orders in each instance. In solving this problem, however, another was created. Over time, the courts extensively modified the breadth of these orders, allowing parties to file affidavits before the Joint Registrar, who would then direct the ISPs to remove such infringing content. These issues have been covered in great detail previously on the blog, and have been subjected to repeated criticisms (see here, here and here).
However, in a well-reasoned order in Home Box Office Inc. v. Streamzy.To, the DHC appears to acknowledge some of these tensions. While recognising the need for effective enforcement against constantly mutating piracy websites, the Court also acknowledges the competing concerns of overbroad website-blocking orders (thereby restricting internet freedom) and the strained idea of characterising the appropriate role of intermediaries such as Internet Service Providers (ISPs) and Domain Name Registrars (DNRs). In doing so, the Court modified the injunctive relief, refusing to grant the plaintiff a blanket ban. Instead, it noted explicitly that the right to determine whether a website is ‘rogue’ cannot vest with the plaintiff (website owners), or the intermediary platforms (p. 20).
In this post, I shall seek to analyse the implications of this case in two parts: first, I shall discuss the Court’s reasoning and whether the decision marks a course correction from the increasingly expansive dynamic injunctions granted in recent years; second, I shall question whether the Court’s proposed framework truly preserves intermediary neutrality.
Background Facts and the Court’s Approach to Dynamic Injunctions
The Plaintiffs, HBO & Ors., are renowned production houses owning copyrights in various cinematographic films and shows. The case was filed seeking a temporary injunction against the Defendants who were alleged to be engaged in the unauthorised broadcasting and streaming of movies produced by the Plaintiffs. These websites were said to flagrantly violate the Plaintiffs’ copyrights by streaming content immediately upon release, or sometimes even prior to official release.
Crucially, the breadth of the relief sought by the Plaintiffs gains relevance here. The Plaintiffs prayed for a ‘Dynamic Injunction’, requesting that if any other mirror, redirect, or alphanumeric websites were discovered during the course of the proceedings, such websites must also be blocked by the ISPs and DNRs merely on being notified by the Plaintiffs on an affidavit, ostensibly without requiring a fresh judicial order (p. 13).
As mentioned, the Court refused to grant such a blanket interim order. It acknowledged that there were competing concerns pitted against each other: the balancing of internet freedom [as recognised in UTV Software Communication Ltd. v. 1337X.To (2019 DHC)], as opposed to the plaintiff’s legitimate right to prevent piracy of their copyrighted content in light of rapidly mutating websites. However, this would not translate into a blanket order, where a mere affidavit by the Plaintiffs to intermediary platforms would suffice for extending the scope of the injunction. The Court noted that “under the guise of a blocking direction, the plaintiffs cannot be permitted to assume unto themselves the authority to identify and disable websites”.
This marks a departure from the overbroad injunctive reliefs granted in previous cases. For instance, in the context of an injunction sought by a trademark holder of a website, the Madras HC in Galaxy Health Insurance v Hostinger Operations UAB (see Kartik’s post here) ordered the DNR to deny registration to ‘any’ phonetically similar websites in the future. Further, this line of precedents also resulted in the idea of a ‘superlative’ injunction (see earlier post here), wherein the sweep of the injunctive relief was broadened to allow plaintiffs to seek relief against not only websites but also rogue mobile applications. Further, the applicants were not mandated for a limited period to file affidavits before the Court, thereby removing even the already minimal judicial oversight.
On the other hand, some courts have realised the concerns emanating from such cases and have sought to limit the scope of relief. However, in doing so, they have arguably gone a step too far. For instance, in Mahindra and Mahindra Limited v. Diksha Sharma, the Court refused to even grant a dynamic injunction, disallowing the Joint Registrar to extend the scope of the injunction without Court approval (see earlier post here).
As mentioned, and as the DHC notes in HBO, the competing concerns at play must be acknowledged, and a fine balance must be drawn. In the present case, the Court seeks to do this through an extensive set of injunctive reliefs. It permits the plaintiffs to notify ISPs/DNRs, by way of an affidavit, of newly discovered mirror, alphanumeric, or redirect websites that allegedly reproduce the rogue websites. Upon receipt of such an affidavit, the intermediary’s role is confined to undertaking a “technical verification” of whether the identified website is indeed a mirror or redirect of an already-blocked domain, following which it may implement the injunction on a pro-tem basis. Crucially, however, the plaintiffs are simultaneously required to move an application before the Court under Order I Rule 10 of the CPC to implead the newly identified websites, thereby ensuring that the ultimate determination remains a judicial one. The Court also cautions that false or mala fide affidavits would invite appropriate sanctions, while preserving the liberty of intermediaries to approach the Court should they have reservations regarding a blocking request.
Hence, it is evident that the Court is seeking to limit any overbroad injunctive relief by allowing only redirect or mirror websites to be blocked, without any blanket restriction – all of which is ultimately subject to judicial oversight. However, it may be argued that the proportionality of the measures was not fully explained. In UTV, the Court stipulated several factors to be taken into account while determining whether the impugned website was rogue, which included, inter alia, whether the website was meant solely for copyright infringement, the flagrancy of the violation and the general disregard for copyright proprietors. In the present case, there was very little discussion on whether these websites were indeed characteristically rogue, as defined in the aforementioned sense. It was not shown with conclusive proof whether the sole purpose was to evade copyright, as is usually shown in such cases (see here, p.18). It was only recognised in a passing reference that the sole purpose ‘appears to be’ infringement of the plaintiff’s copyright (p.7). It was not recognised to what extent these websites were only meant for HBO’s content, to what extent these websites had any licensed content (if any) from other platforms as well, and whether a blanket ban on the entire website was justified. While the Court does discuss some aspects, its reasoning appears to take some of these elements as largely presumed.
The Role of Intermediaries
Another extremely important concern that the Court addresses in this context is the role of intermediary platforms – an aspect which has strangely gone unexplored in previous cases. It explicitly noted that “[a]n ISP or DNR is, in the ordinary course, a neutral intermediary. It is not the function of such intermediary to determine whether any particular website is a ‘rogue website‘”. In order to protect their safe harbour status under Section 79 of the Information Technology Act, 2000 (“IT Act”), the Court noted that their role is merely one of ‘technical verification’ – to verify whether the website is a mirror of the defendants’ website, and not simply block websites on the request of the parties (p.22).
While it is appreciated that the Court acknowledged these concerns, it is still questionable whether the holding in HBO is reconcilable with the standard for ‘actual knowledge’ under Section 79 of the IT Act, as articulated by the Supreme Court in Shreya Singhal v UOI.
In Shreya Singhal, the Supreme Court read down Section 79(3)(b) of the IT Act to hold that an intermediary loses safe harbour under the section only upon receiving ‘actual knowledge’ through either a court order or a notification issued by the appropriate government. The Court rejected mere private notices as a trigger for intermediary liability because they would inevitably require intermediaries to independently assess contested content which might incentivise intermediaries to remove content upon the mere allegation of illegality in order to minimise exposure to liability.
While the Court in HBO lowers the breadth of injunctive relief, it still permits the blocking of websites that are neither identified nor in existence at the time the injunction is granted, implying that the order in HBO satisfies the ‘actual knowledge’ requirement for all future instances of alleged violations. It is argued that the holding in HBO may be difficult to reconcile with the underlying constitutional logic of Shreya Singhal.
First, Shreya Singhal indicates that it did not merely require the formal existence of a court order – rather, it arguably required a determination/order with respect to the specific content in question (see p.117 – “Section 79(3)(b) has to be read down to mean that the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material”). The safeguard lies in ensuring that an authority conclusively determines whether the legal threshold for restricting speech had been satisfied in that particular case. HBO, however, continues the approach of previous cases by prospectively extending its reach to websites that are neither identified nor in existence at the time the order is passed. While judicial review remains theoretically available at a later stage, the initial restriction occurs prior to such review, effectively reversing the sequence and rationale contemplated in Shreya Singhal.
Secondly, this concern is not answered merely because HBO characterises the intermediary’s role as one of “technical verification”. The Supreme Court repeatedly emphasised that intermediaries are mere passive facilitators and cautioned against frameworks that require them to actively process and evaluate private claims. However, HBO continues to require intermediaries to receive affidavits from copyright holders, determine technical characteristics of websites, and implement restrictions before any judicial scrutiny of the specific website. Although described as ‘technical’, they nevertheless require intermediaries to assume an active enforcement role that may sit uneasily with the conception of an intermediary. This position also has significant potential to create ‘chilling effects’. As Jonathan Penney has argued, legal uncertainty frequently induces private actors to over-comply where the costs of erroneous compliance are substantially lower than the costs of non-compliance. Faced with a plaintiff’s affidavit identifying a purported mirror website, intermediaries have little incentive to rigorously test the accuracy of the allegation, particularly where refusing to block the website may jeopardise their safe harbour protection. The predictable consequence is systematic over-removal/censorship.
Therefore, HBO may still risk producing precisely the form of private censorship that the ‘actual knowledge’ standard in Shreya Singhal was designed to prevent.
I would like to thank my dear friend, Sumukhi Subramanian, Editor-in-Chief at the Indian Journal of Law and Technology (IJLT), NLSIU for her valuable inputs while writing this post
