Apar Gupta
This is a two part series. Since a lot of legal concepts are involved Part — 1 merely seeks to put a background to john doe orders and presents some data on how such orders have been granted in the past. In Part 2, I will undertake some analysis on what makes the Singham Order different from orders passed earlier and also look at ways how we can prevent such massive internet outages.
I have written before on how injunctions when not carefully granted or when misapplied can be used by private parties to stymie online freedom. One such instance was again revealed last month when the Delhi High Court passed an interim injunction against suspected and unknown would be infringers of the movie Singham (read on it here). After getting the Order, it seems that a broadly worded letter went out to several Indian ISP’s who then blocked access to several file sharing websites (read on it here).
The order which was passed on 20th July by the Delhi High Court noted that,
Plaintiff is the producer of cinematograph film, “Singham”. Plaintiff apprehends that the said movie will be copied and DVDs/CDs thereof will be prepared, distributed in the market as also shown on TV by the cable operators, thereby causing huge financial losses to the plaintiff.
Usually when a copyright infringement or any form of intellectual property violation is alleged the particulars of the defendant or the person who does the violation are disclosed by the person making the complaint. However, in this case, the Plaintiff utilized of a carve out in the law, popularly known as a john doe order. In the words of the court itself:
Perusal of the orders, reliance whereupon has been placed by the plaintiff, shows that such unknown unauthorized persons can be arrayed as defendant nos. 6 to 30 and a John Doe order may be passed against such persons enabling plaintiff to serve order upon such persons when their identity is disclosed. Past practice of unauthorized persons indulging in such illegal activities of copying the film on CDs/DVDs/Blue-ray disc and distributing the same has also been recognized in the judgment relied upon by the plaintiff. In the facts of this case as detailed above, in my view plaintiff has succeeded in making a prima facie case in its favour.
- Now the question which arises is, what exactly is a john doe order?
A John Doe/Ashok Kumar order is a type of injunction granted by courts in cases where an anonymous person maybe committing a breach of the rights of the Plaintiff and cannot be identified by the Plaintiff at the time of filing of suit. This concept is well entrenched in the common law jurisdictions of Canada, America, Australia and UK. In an order dated 14th June 2002, Justice Dalveer Bhandari in the case of Tej Television v. Rajan Mandal recognized its applicability in Indian cases for the first time. In this landmark decision, which was reported internationally, the court recognized the exigency in which no other remedies could provide effective relief to a TV channel to protect its investment in a valuable live broadcast.
- Under what conditions can a john doe order be granted ?
An analysis of some Indian judgments leads one to the conclusion that requirements of a John Doe order are similar to that of obtaining a temporary injunction under order 39 rules 1 and 2 of the Code of Civil Procedure, i.e. prima facie case, balance of convenience and irreparable loss. The burden on the plaintiff is to merely disclose the existence of a right and breach, thereof. Hence, the principles for the grant of an interim injunction seem to have been applied without much modification to the grant of john doe orders. The only significant change being the Plaintiff in its pleadings alleging that it anticipates large scale and sporadic infringement and is unable to ascertain the full particulars of the defendants at the time of seeking relief.
- What are the limitations on passing a john doe order ?
Since the concept of a John Doe order is rather recent and judge made, it will take some time and some cases for the law on it to develop fully. However the recent judgment in The Indian Performing Right vs Mr. Badal Dhar Chowdhry (read it here) he reflects how John Doe orders can be restricted. In the case, the Court, pointed to the requirement of specificity of the infringement for passing a John Doe order. The Court noted that:
7. The court ought not issue an injunction which is vague or indefinite. Breach of injunction has serious consequences for the violator. However, before the Defendant can be so injuncted, the Defendant ought to be made aware of the precise act which he is prohibited from doing. A vague injunction can be an abuse of the process of the court and such a vague and general injunction of anticipatory nature can never be granted.
In my view and limited understanding, specificity as to the infringement is the least we can hope from a john doe order. Here, the injunction may clearly contain, (a) the article in which the infringement is alleged; (b) the anticipated source based on prior experience of infringement; © limited steps which can be taken by the plaintiff to enforce the injunction. According to me, the direction ©, becomes incredibly important when injunctions are granted for websites.
- Some Instances of John Doe Orders passed by Indian Courts
The analysis of the law would appear somewhat incomplete if we do not take into account cases where such orders have been issued in the past. The case titles as well as a brief of these cases are presented below.
1.ESPN Software India Private Ltd. v Tudu EnterpriseIn this case Defendants №145–173 we declared as “Mr. Raj Sharma’s”In this case it was pleaded that unlicensed distributors may unauthorisedly transmit the Plaintiff’s television channel via their network without a licence. The courts power under Section 151 of CPC was invoked. While granting a relief restrained from distributing, telecasting and roadcasting/rebroadcasting or in any other manner communicating to the viewing pubic/subscribers either by means of wireless diffusion or by wire or in any other manner the ICC Cricket World Cup, 2011 . 2.Ardath Tobacco Company Ltd. Vs. Mr. Munna Bhai and OrsIn this case unidentified Defendants №7 to 23 were declared as “Mr Ashok Kumar’s”The defendants were restrained from manufacturing, selling, stocking or dealing in cigarettes under a label, carton or packaging material deceptively similar to the label, carton and packaging material and artistic work as of the STATE EXPRESS 555 of the plaintiff. 3.UTV software communications limited v Home Cable Network Ltd. and ors Defendant nos.19 to 50 named as Mr. Ashok KumarThe plaintiff urges that these defendants are unknown identities who would also telecast the unauthorizedly and illegally telecast pirated version of the plaintiff’s films by their network without any licence.
It may be noted that such injunction was granted to prevent the broadcast of not only the Plaintiff’s movie 7 Khoon Maf but also pre-emptively prevent the broadcast of the plaintiffs’ upcoming movie Thank You, much similar to the Singham case.
4.Satellite Singapore PTE Ltd. Vs. Star Cable Network & othersThe Court ordered any other person/organization/body who is indulging in the act of piracy of the signal of the Appellant and/or in which the Appellant has the exclusive right is also prohibited/injuncted from distributing or broadcasting the said signal/programme of the Appellant qua the IPL Cricket Tournament.A Commission was also ordered to be executed to visit the premises of the Respondent and/or any other during the hours IPL matches were being telecast live and seize the receiving and transmitting devices, if it was found that the latter had been downloading Sony Set Max channel signal without proper authorization. Note: This type of order is Known as an Anton Piller order.5.Tej Television v. Rajan Mandal (Landmark Case)Defendants not quatified and blanket permission granted.The Delhi High Court, on June 14, 2002 granted a path-breaking order authorising a court appointed commissioner to enter the premises of any cable operator in India and record evidence of any unauthorised telecast of the FIFA World Cup football matches.
In the present case, the Plaintiff, Taj Television Ltd., based in Dubai, owned and operated an exclusive sports channel by the name of TEN SPORTS. The Plaintiff had acquired the exclusive rights to the telecast of the FIFA World Cup Football matches for India and certain other South Asian countries, from Kirch Sports, an entity that had in turn acquired the worldwide rights from FIFA. Ten Sports was being broadcasted from Dubai in an encrypted form and could be received by only those cable operators with a decoder.
6.Reliance Big Entertainment Private Limited v Jyoti Cable Networks and OrsDefendant №6 to 30 named s “Ashok Kumar”The court held that Perusal of the orders, reliance whereupon has been placed by theplaintiff, shows that such unknown unauthorized persons can be arrayed asdefendant nos. 6 to 30 and ?John Doe? order may be passed against suchpersons enabling plaintiff to serve order upon such persons when theiridentity is disclosed Perusal of the orders, reliance whereupon has been placed by theplaintiff, shows that such unknown unauthorized persons can be arrayed asdefendant nos. 6 to 30 and ?John Doe? order may be passed against suchpersons enabling plaintiff to serve order upon such persons when theiridentity is disclosed Perusal of the orders, reliance whereupon has been placed by theplaintiff, shows that such unknown unauthorized persons can be arrayed asdefendant nos. 6 to 30 and “John Doe” order may be passed against suchpersons enabling plaintiff to serve order upon such persons when theiridentity is disclosedthe plaintiff may serve notice to the John Does as and when their identity is disclosed.7.Taj television ltd. v channel communicationAction authorised against any cable operator It may be noted that the commissioner was authorised to even seize the equipment of the cable operators.8.Luxottixa Group Ltd v Ashok KumarExact order Not foundOn Friday, 16th April 2010, the Delhi High Court passed an order restraining the sale and manufacture of counterfeit optical eyewear and their carry cases bearing the famous trademark RAY BAN.The local commissions issued by the Court to execute the orders of seizing and sealing the counterfeit goods was a resounding success. Apart from over 2500 imitation products discovered from the persons named in the action, counterfeit goods were also found at various premises in the close neighbourhood of the named defendants through the “Ashok Kumar” orders. The Courts thus recognize that in certain cases of counterfeiting the Ahsok Kumar type orders are the only remerdy for a Plaintiff faced with large volumes of anonymous counterfeiters.
It is important to note here that a lot of such orders are passed at an interim stage and do not have significant volume or reasoning, often being omitted by the law reports. Hence, the data which is presented below cannot be anything but hopelessly incomplete.
Having said this most of these John Doe orders are similar and I do not anticipate significant changes with more data becoming available. So, going in with this limited caveat, in part 2 I hope to utilize the data above and analyze the Singham Order against it.
Readers as always are welcome to leave their thoughts and comments. Also if we have missed out some John Doe orders please let us know.
Update 1: Medianama reports that Reliance Big Pictures has again obtained a similar order to prohibit the piracy of the movie, “Bodyguard” which will be released this week. Two points come through in it, (a) if such orders are asked by more movie production houses it will lead to a perpetual block on file sharing websites; (b) an intervention application must be filed to bring to the notice of the court the unintended effects on legitimate file sharing.