Article on John Doe Orders on Bar and Bench

Bar and Bench has published an article written by me on the recent blocks by ISP’s on filesharing and video sharing websites in India due to a John Doe Order. The main problem which I have tried to highlight is that John Doe Orders are extraordinary remedies and when they are granted without specificity invariably lead to abuse. To evidence this I have cited several John Doe Orders granted by different Courts in India and why we can now hope for some reform to this judicial remedy. I have extracted some parts of the article below, to read it completely click here.

This practice first came into notice when Reliance Big Entertainment obtained such an injunction for its movie, “Singham”. Acting under it, a broadly worded cease and desist notice was sent by its lawyers to several Indian ISP’s and file sharing websites. Threatened with a potential contempt proceeding, Indian ISP’s blocked access to several file sharing websites. After the first two weeks of “Singham” release, after it turned a profit, the blocks were removed. “Singham” was not the last movie which was made by Reliance Big Entertainment or the last John Doe order which was granted by the Delhi High Court. Over the course of the year it came to file three more cases in which John Doe Injunctions were granted. In 2012, one of its company executives even boasted in a MINT article that, they had obtained a John Doe Order, “this time not just for a single release but for most big-budget films this year”.

Other big production houses also joined in the party, Viacom 18 filed three cases in which John Doe Injunctions were granted in 2011 and this year it has already got four. This is just the Delhi High Court and one can never be sure as to how many John Doe Orders are floating around as John Doe Injunctions are not detailed orders reported in Court Reports and Journals. Several internet activists and users started fearing a perpetual block on file sharing websites in India given how obtaining a John Doe Order was becoming relatively easy and most major production houses were engaging lawyers at the same time they were engaging advertising agencies to prepare publicity stills.

These fears came true with more courts granting John Doe Orders and Plaintiffs acting under them shooting off cease and desist notices to ISP’s. The John Doe Order, which was essentially a resident of the Delhi High Court, travelled to other Courts. The District Court in Ongole, Andhra Pradesh granted an interim injunction in 14 Reels Entertainment Pvt. Ltd. v. P. Srinivasulu for the movie “Dookudu” referring to a Delhi High Court John Doe Order dated 20.07.2011. Even last week, the Bombay High Court granted a John Doe Order to Viacom 18 for the movie “Gangs of Wasseypur”.

It is to be noticed that Plaintiffs also increasingly became emboldened as the recent batch of cases out of the Madras High Court has demonstrated (R.K. Productions v. BSNL, Creative Commercials v. BSNL). In these cases, the ISP’s themselves have been made primary parties to the litigation in addition to the John Does. The Plaintiff also filed a complaint with the Hyderabad City Police Cyber Crime Department. It is important to bear in mind that ISP’s never host the material and at best only provide a connection to the infringing copy.  This demonstrates an increasing tendency of Plaintiffs to shift the burden of policing the protection of their intellectual property from them to the ISP’s.  The ISP’s when made primary parties to such litigation will surely block whatever is requested from them.