India's first dynamic injunction issued to block access to 'rogue websites'

As readers know, blocking injunctions have been routinely issued in a number of jurisdictions around the world. More recently, courts have began granting dynamic injunctions, aimed at increasing the effectiveness of enforcement. Quite recently, this was the case of India, where the Delhi High Court issued the first dynamic website blocking order.

Katfriend Akanshha Agrawal (National Law University Delhi) reports what happened. Here's what she writes:

Katblocking

India's first dynamic injunction issued to block access to 'rogue websites'

by Akanshha Agrawal

Online piracy continues to be a menace which a very difficult for the courts to tackle. There are several reasons for this, the most important being the difficulty in removing pirated content available online. Court orders are difficult and time consuming to obtain. Further, blocking websites often becomes useless as new websites with the same content pop up instantly. Due to all this, online piracy continues to be an ever-evasive problem with few practical solutions. However, the Delhi High Court, in UTV Software Communication Ltd v 1337X.TO and Ors recently made a significant advancement in protecting such rights, particularly in the case of blocking entire websites or mirror websites. 

UTV Software Communications Ltd., the plaintiffs in the present case, filed eight suits primarily seeking an injunction restraining infringing activities of the defendants. The plaintiffs are engaged in the business of creating content, producing and distributing cinematographic films around the world, including in India. The defendants were classified into four broad categories – certain identifiable websites, John Doe defendants, ISPs, and government departments (Department of Telecommunication and Ministry of Electronics and Information Technology). The defendant websites did not respond to any of the summons, presumably because they were based outside India. However, the Court deemed the issue of general public importance and issued the relevant injunction even in such absence. 

Analysis of the court

The court analysed seven issues. 

Issue I: Whether an infringer of copyright on the internet is to be treated differently from an infringer in the physical world? 

The court here considered the approach of the “Internet exceptionalists”. They believe that the internet is exceptional and most rules of offline space should not apply to the online space. According to them, Internet is about individual freedom and not about collective responsibility. Online piracy helps in providing free content to consumers. The court disagreed with this approach. It found such a distinction to be an artificial one. Most pirated websites are not about providing free content, but earning money by extensive advertisement.Therefore, the court concluded that copyright infringement on the internet should not be treated differently as there is no logical reason why crime in the physical world should not be considered a crime once in the digital world, especially when the Indian Copyright Act does not make such a distinction. 

Issue II: Whether seeking blocking of a website dedicated to piracy makes one an opponent of the free and open internet? 

The court answered this in negative. It opined that the question is not whether the internet should be completely free or whether government should have censorship authority. Rather, the question to be considered is where the appropriate line should be drawn to balance the interests, and how it should be drawn and implemented. According to the court, blocking of pirated websites does not make one an opponent of free and open internet. 

Issue III: What is a ‘Rogue Website”? 

The court identified Rogue Websites or Flagrantly Infringing Online Locations (borrowed from the Singapore Supreme Court) as websites which primarily or predominately make available infringing content. This is important to create a distinction between accidental and intentional piracy by the websites. The court also provided an indicative list of non-exhaustive list of factors for identifying such rogue websites. It would take into consideration factors including the primary purpose of the website, flagrancy of the infringement, volume or frequency of access to the website. 

Issue IV: Whether the test for determining a 'Rogue Website' is a qualitative or a quantitative one? 

The court answered that the test should be qualitative and not quantitative. If the test is purely quantitative, then every website would add a fraction of licensed or original content to evade legal measures. The court recognised that identifying each infringing URL is a gargantuan task, particularly when websites can change URLs within seconds. Therefore, injunctions against rogue websites would be justified when the content on such websites is overwhelmingly infringing. 

Issue V: Whether the defendant-websites fell within the category of 'Rogue Websites'? 

The Court looked at the indicative factors for identifying a rogue website listed above sub Issue III and answered this question in affirmative. It accounted a number of factors, including: no legitimate contact details on the website, facilitation of infringement by availability of indexes for downloading illegal content and factors considered by other jurisdictions in similar situations. 

Issue VI: Whether the court would be justified to provide directions to block the 'Rogue Websites' in their entirety? 

The court answered this question in affirmative. It held that, to issue a website blocking injunction order, it is necessary to consider whether disabling access to such an online location is in the public interest or not. The measure taken should be fair, proportionate and effective in the given circumstances. Such a measure should not create a barrier for legitimate trade. 

Issue VII: How should the court deal with the 'hydra headed' 'Rogue Websites' that, upon being blocked, actually multiply and resurface as redirect or mirror or alphanumeric websites? 

Here, the court introduced dynamic injunctions to Indian jurisprudence by borrowing from the Singapore High Court in Disney Enterprises, Inc. & Ors. v M1 Limited & Ors. Through this, an injunction order can be extended to mirror/redirect/alphanumeric websites to those already blocked. Such an extension of the injunction is justified as these websites merely provide access to the same websites which are subject to the main injunction. The power of adjudicating on the issue of such mirror/redirect/alphanumeric websites was delegated to the joint registrar of the High Court. Through this the Court has extended the power of blocking websites to an administrative agency. 

The road ahead

The judgement marks a significant advancement in curbing the menace of online piracy. It introduces certain novel ways of tackling the problem. 

The court has granted the power to the plaintiffs, with the approval of the Joint Registrar, to update the list of blocked websites by adding the names of mirror/redirect/alphanumeric websites. 

This is a very practical solution, as one of the most apparent difficulties in tackling online piracy is the ability of pirated websites to produce mirror websites within seconds. 

As the power to update the list of blocked websites is now available without extensive procedures required for a new application, this will make blocking mirror websites easier and more effective. 

This is the most important aspect of the judgment as it substantially reduces the resources required for blocking every mirror infringing website. 

The court consciously accounted for the rights of copyright holders. This is in balancing the interests of the rights holder and desirability of a “free internet” for the consumers. It acknowledged that website blocking is a cumbersome process and majority of the pirated users are unaware that such an act is illegal. Due to this reason, the court urged the governmental bodies to explore the possibility of framing a policy of issuing warning to users, in forms of email or pop up notifications, which would be followed by a fine if the user continues to engage with such platforms.