- Background: As per RTI data from BSNL, 31 cases over two years led to the blocking of more than 4000 websites in India. Most of the cases involve allegations of copyright infringement related to movies. We are making a copy of this response with the text of these orders available. BSNL has only revealed court orders but refuses to provide any directions received from the Central Government for blocking of websites and we will be filing an appeal with the CIC regarding denial of this information.
- Lack of Due Process: Our analysis of the court orders reveals four disturbing trends. First, the court orders permit blocking of the entire website, and not just specific URLs which host IP infringing content. Second, courts have passed the buck to ISPs to determine whether blocking websites listed by the plaintiff is necessary to prevent copyright infringement without independently verifying if these websites host infringing content. Third, interim injunctions are granted to block access to websites without providing the website owner an opportunity of being heard. Finally, Ashok Kumar orders which were intended to gather evidence against unnamed defendants are being misused for website blocking.
Perseverance Pays Off (Partly)
After a long drawn process, BSNL has provided IFF access to court orders directing blocking of websites in 2017 and 2018. We had filed two RTI applications with BSNL on 6 March 2019 seeking information about website blocking orders issued by the Central Government and different courts. Both RTI applications were initially rejected by citing the existence of a fiduciary relationship under Section 8(1)(e) and threat to life and safety of a person under Section 8(1)(g) of the Right to Information Act, 2005. We appealed the rejection of our RTI requests, and we were partly successful because BSNL agreed to provide us access to court orders. However, it has refused to disclose website blocking orders issued by the Central Government and we intend to challenge this before the Central Information Commission (CIC) soon.
Anatomy of a Website Blocking Court Order
We were provided access to 31 court orders in total. Out of these, 25 orders were passed by the Madras High Court and the remaining 7 orders were passed by the Delhi High Court. Almost all the court orders relate to unlicensed streaming of copyrighted films, TV shows or sports events on websites such as 123 Movies, Pirate Bay, Put Locker, Torrent etc. Approximately 3000-4000 websites were blocked by each order but there is significant overlap in the websites mentioned by different orders.
We analysed all 31 court orders and discovered four disturbing trends.
(i) Whole websites, and not specific URLs are being blocked
All court orders relating to copyright infringement permit blocking of the whole website, and they do not limit suspension of access to specific URLs which host infringing content. The list of websites is prepared by the plaintiff with the help of paid investigative agencies and it is accepted by the court without any independent scrutiny.
A notable exception to this trend of blocking whole websites is present in the solitary court order relating to trademark infringement which directs blocking of specific URLs selling infringing products on E-Commerce platforms like Amazon, Flipkart and Snapdeal. Indeed, it is difficult to imagine a scenario where a court would mechanically block access to the whole website of a multi billion dollar giant like Amazon. Unfortunately, file sharing platforms like Torrent which have been characterized as rogue pirates do not receive the same level of consideration.
(ii) ISPs forced to be Judge, Jury and Executioner
Most court orders passed by the Madras High Court put ISPs in a tough spot because they are directed to block websites listed by the plaintiff if it is necessary to prevent copyright infringement. This is unacceptable because ISPs are not capable of making such decisions which require application of judicial mind. Whether blocking a website is necessary to prevent copyright infringement will require the ISP to evaluate the genuineness and imminence of the threat vis a vis each website. Since ISPs do not want to waste their resources on individually verifying whether infringing content exists on the thousands of websites listed by the plaintiff, they will err on the side of caution and block access to everything. Further, there are several exceptions to copyright infringement such as fair use for educational purposes or criticism, and ISPs cannot be expected to balance competing interests to determine if the exception is applicable.
(iii) Ex-parte orders are undermining the adversarial basis of our justice system
Out of 31 orders in total, 21 orders were passed without any of the defendants or their representatives present. Therefore, there was nobody present during the hearing who could challenge the plaintiff’s version. This is deeply problematic because our justice system follows an adversarial model which believes in discovering the truth through contestation between opposing parties. In the cases before the Delhi High Court, there were four types of defendants: owners of named websites which are known to host copyright infringing content, owners of unnamed websites which may be hosting copyright infringing content but their identity is not currently known, ISPs and government bodies like Department of Telecom. However, plaintiffs who had filed their copyright infringement suits before the Madras High Court only impleaded ISPs as defendants. This means that owners of websites which are being blocked have not even been brought on record or served notice. If only ISPs are impleaded as defendants, then it is not a genuinely adversarial proceeding because as previously noted, ISPs are business entities which would prefer to err on the side of caution and they will not fight for website owners.
(iv) Ashok Kumar orders being misutilized for website blocking
For everyone who isn’t an intellectual property lawyer, an Ashok Kumar order is a court order which restrains a class of persons whose identity is not yet known from infringing the plaintiff’s rights. These orders are called John Doe orders abroad.
The difference between John Doe orders and website blocking orders has been explained by Ananth Padmanabhan writing for CIS:
“The most crucial point of distinction between these two types of orders is that while John Doe orders speak to the primary infringer, website blocking orders impose onerous responsibility on the ISP. John Doe orders as used in India thus far have served the purpose of a blanket search and seize mandate to gather evidence of direct infringement. As seen above, the final relief in the suit is granted only against those John Does who are subsequently identified and arrayed as parties to the main suit. Website blocking orders, on the other hand, amount to granting the final relief at the interim stage itself, as access is blocked to web links hosted by unknown persons by taking recourse to the ISP.”
In some of the court orders that we analysed, the judges have failed to appreciate this distinction, and they have put the cart before the horse by directing the ISPs to block access to any infringing website upon receiving notice of the same from the plaintiff. The ISPs are required to block access even if the owner of the website was not impleaded as a named defendant or mentioned in the list of websites provided by the plaintiff to the court.
Need for due process and proportionate solutions
On our blog, we have previously written about problems in the website blocking process under the IT Blocking Rules. Most recently, we discussed this issue in the context of blocking of the satirical Dowry Calculator website for which we had also filed an RTI.
Our analysis of the court orders supplied by BSNL reveals that even when websites are blocked by the judiciary, there is a lack of due process and natural justice. Website owners are not given notice or hearing before grant of interim injunctions. Further, court ordered website blocking is disproportionately broad because it is not limited to specific URLs which host infringing content. File sharing platforms also host legitimate content and cutting off access to the entire website is akin to throwing the baby out with the bathwater.
The most troubling trend is the concentration of power in the hands of ISPs who are expected to block websites which may or may not be mentioned in the plaint based on whether it is "necessary" to prevent infringement. This means that our fundamental right to free speech which is guaranteed by Article 19(1)(a) of the Constitution is left at the mercy of overly cautious and business minded ISPs. As internet users, we are often left wondering why certain websites have been blocked because the notices displayed are cryptic and inconsistent, and they do not disclose reasons for suspension of access. This lack of transparency directly impacts our right to receive information which is also a part of Article 19(1)(a) of the Constitution.
Filing RTIs has been an important part of IFF’s strategy to unearth information which concretely demonstrates lack of due process and transparency in the website blocking process. If you have ideas about other RTIs we should file, write to us!
- Table providing a summary of the court orders received as RTI response from BSNL [link]
- RTI response containing court orders received from BSNL [link]
Whether you like Netflix and Chill or Torrents and Tor, the internet should be a space for curiosity and access to information. Help us preserve the best bits of the internet? Become an IFF member today!