We are pleased to bring you a guest post by Krishna Ravishankar and Parul Anand on the evolution of the dynamic injunction jurisprudence in India. Krishna and Parul are third-year students from National Law University Jodhpur.
The Tale of Indian Dynamic Injunctions Jurisprudence: One Step Forward Two Steps Back
Krishna Ravishankar and Parul Anand
Injunction, a veteran tortious remedy for legal infringements, has taken a dynamic form to address novel infringements previously absent in the non-digital domain. The ever-shifting internet and sly sleight of hands techniques such as masking, mirroring, etc. have all rendered the static model of injunctions insufficient. Dynamic injunctions arise when a continuing injunction is issued; the specific targets of which are not mentioned in the primary order but rather an emphasis is laid on the impugned subject matter and protected right, thereby including in its ambit any potential infringements. They are usually invoked when the infringing content arises with a new username, or URL; customizes its existing URL, mirror websites are created, forwarding to another website holding the infringing material with or without masking. Though they are a potent tool for protecting especially copyright concerns, they are not without their hiccups. Especially the contemporary Indian jurisprudential landscape holds concerns regarding the overbroad nature of these injunctions from a perspective of proportionality. The case law jurisprudence leaves much to desire and a coherent operative framework is required for the same. It is this juncture that this post seeks to comment upon.
Understanding the Trajectory of Dynamic Injunctions and Their “Broad” Scope
The first case to employ dynamic injunction as a remedy to prevent copy right infringement was the Delhi High Court’s judgement in the famous UTV Case following the Singaporean precedent of Disney Enterprises, Inc. v. M1 Limited. Moreover, the Court also vested power to the Registry to issue such injunctions under Order 1 Rule 10 of the CPC on the account of redirecting websites with different alpha-numeric combinations being created to save the Plaintiff from the burdensome process of obtaining a judicial blocking order. While the Delhi High Court did take into account the proportionality standards to balance out the intellectual property rights of the plaintiff and the defendant’s right to carry out his/her profession, there were some pandora boxes opened by it too.
Slowly, the trajectory started moving in such a direction which over-broadened the scope of these injunctions by Courts. In the case of Warner Brothers, the Court issued ex-parte dynamic injunctions without any rationale and moreover ordered the Ministry of Electronics and Information Technology to suspend their domains. This shows how the Court has started to widen the ambit of such injunctions straying away from the expected proportionality standard and impleaded any mirror website. Similar trends have also been witnessed in the Disney case adjudicated by the Delhi High Court in 2020. Moreover, this remedy has also now been extended to trademarks in the Snapdeal case. Thus, the widening scope of a dynamic injunction surely is not in consonance with the very proportionality standard evolved in the UTV Case.
The width and breadth of dynamic orders have now been furthered in the Delhi High Court judgement of Universal City Studios LLC and Ors. v. Dotmovies.baby and Ors through the evolution of the dynamic+ injunctions. The traditional John Doe orders or dynamic injunctions were ex-post remedies given by Courts to parties in case of trademark infringement. However, this judgement adds another dimension to such injunctions by providing protection to any future works or creations from being illegally hosted transitioning from an ex-post (after the event) to an ex-ante (before the concerned event) remedy. The dynamic+ injunction pre-empts a copyright infringement on works that haven’t even been expressed yet and seems excessively disproportionate, since at an injunction stage, there is only a prima-facie determination of infringement.
Checks and Balances for the “Over-Broadened” Scope of Injunctions Through the Principle of Proportionality
To address this overbroad scope of dynamic injunctions, certain guidelines and metrics can be devised to ensure proportionality. As Professor Shamnad Basheer remarks, it is important that an Intellectual Property Rights Ombudsman is appointed to look into the technicalities of drafting guidelines to make sure the phenomenon of over blocking is minimized. These guidelines can include the gravity of infringement, the reach of the website, and the nature of the website itself as today the Delhi High Court Rules provide for such injunctions to be issued to block “any mirror website”. These guidelines ought to be notified by the concerned authorities and will ensure that the current administrative discretion provided to the Joint registrar, or any other authority responsible with impleading potential injunctions is guided, and not unbridled and arbitrary. The modus operandi for the same could be to analyze whether a URL has to be blocked, or the whole website, verifying the assertions of the plaintiff vis‐à‐vis the identity of website operators, whether the new infringement links strongly to the bundle of rights that are to be protected by the parent injunction order, verifying copyright ownership and verifying instances of copyright infringement alleged by the owner, amongst others. Equity is another principle which has been evaluated for the same context.
Additionally, to evaluate proportionality, the following questions can be asked as an effective metric: (i) whether the goal, that is blocking access to infringing material, can be achieved; (ii) whether it is the best means to achieve the goal; and (iii) whether the burden of the means is not excessive in relation to the objective sought. Moreover, an injunction must only constitute the minimal scope necessary to accomplish the objective (ceasing and/or preventing the infringement) – a metric inspired from the European Commission.
In addition to this, there must an evidentiary standard that must evolved to warrant a dynamic injunction remedy due to the costs and resources involved in this exercise. Moreover, another issue of contention is the aspect of cost of blocking websites. This is a vacuum that the UTV Judgement doesn’t adequately address. While traditionally, Europe and US have made the Internet Service Provider bear the cost as part of the cost of enforcement, the United Kingdom has taken a different approach. In Cartier International AG and Ors. v. British Telecommunications Plc and Anr., the UK Supreme Court made it mandatory to for the rights-holder to compensate the Internet Service Provider for the cost of enforcement.
Moreover, there must be increased stakeholder inputs in the issuance of the order. In the Warner Bros case, merely passing ex-parte orders without consulting third parties such as the Internet Service Provider or the Intermediary carrying that pirated work would be antithetical to the technological world’s sustenance. These third parties must be consulted for technical feasibility of these injunctions and should be allowed to intervene in these petitions. Also, as seen from the prayers in the Sci-Hub Case, since the ambit of these injunctions have been expanded from cinematographic works to include works of education which have an impact on public interest, even such affected user groups must be provided an intervention opportunity.
Another notable lacunae in the law concerning the effectiveness of dynamic injunctions is dynamic injunctions’ bypassing vis-à-vis the use of VPN (Virtual Private Network) technology. The blocks imposed by ISP providers blocking access to content, especially so in the case of a geo-blocking form of dynamic injunction, can easily be bypassed by the use of a VPN, thereby severely affecting the rights of aggrieved parties and rendering the remedy ineffective. To address this, the Court must also implead VPN providers to do the same. Similar sentiments about involving VPN providers have been contemplated by Roy and Marsoof remarking on ineffective nature of this particular Technology Protection mechanism without addressing the VPN part of the equation. As currently VPN providers are not involved in any such undertaking, or brought under scrutiny or impleadment by the courts as the paper remarks, this leaves space for sly bypassing of every ISP blocking order passed under thereby rendered futile dynamic injunction.
Content-blocking measures ought to be the last resort after all other options are exhausted. And when invoked, must be supplemented with necessary measures and justifications. The proportionality principle acts both a principle for examining the balance of rights as well as the cost-effectiveness of blocking orders. Following these steps, not only are the rights of the parties balanced but also societal interests at large are taken care of to make sure the Indian dynamic injunction regime is always two steps forward.
