Single Judge’s order directing blocking of 73 pirate websites, restored

Delhi High Court: Deciding the issue of online piracy in review, the Division Bench of Pradeep Nandrajog and A.K.Pathak, JJ.  restored the order of the Single Bench directing the blocking of 73 pirate websites and further directing the Government of India,  Department of Electronics and Information Technology to ensure compliance with the injunction order.

The respondent, a leading sports broadcaster had prayed for an injunction against Defendants 1-73 by blocking their websites and direct the internet service providers to block the rogue websites. The Single Bench while issuing an ex parte ad interim injunction had directed the appellant Department to ensure compliance with the order.  The Court in appeal had restricted the span of the impugned order directing that only the specified URLs identified would be blocked and not the entire website on the ground that the right of a person to carry on trade and business had to be justified and such restriction as was reasonable could be imposed by a court. The appellant challenged this order on the ground that the Court had erred in issuing directions to the Department and that the sweep of the order was too wide.

The respondent had urged that the URLs of Defendants 1 to 73 varied between 2 to 2026 and  the restrictive injunction granted would render the injunction infructuous because it is very easy to change a URL, but relatively difficult to change a domain name. If the URL of a rogue website is blocked, the operator can simply log into the website source code and change the URL akin to a person changing one’s password. But, if a domain name itself is blocked, to continue with the infringing activity becomes a cumbersome, time consuming and money spending exercise. A new domain name has to be created and purchased apart from purchase of a fresh hosting server space.

The Court observed that the respondent has placed enough material in the suit to show that the rogue websites were indulging in rank piracy and thus prima facie the stringent measure to block the website as a whole was justified because blocking a URL may not suffice due to the ease with which a URL can be changed. The number of URLs of the rogue websites ranged between 2 to 2026 and cumulatively would be approximately 20,000. It would be a gargantuan task for the respondent to keep on identifying each offending URL and especially keeping in view that as and when the respondent identifies the URL and it is blocked by the ISP, the rogue website, within seconds can change the URL thereby frustrating the very act of blocking the URL.

On the issue of whether the appellant could be directed with ensuring compliance with the blocking order directed against the service providers, the Court held that it is the duty of the Government, its instrumentalities and agencies to assist in the enforcement of orders passed by the courts, the Court noted that the appellant had complied with the directions of the Single Judge.

The Court held that the concern of the appellant, a wing of the Government of India with the issue of freedom of trade on the internet may be well founded but on the facts of the instant case, it is misplaced. Allowing the review petition, the Court recalled its order dated March 10, 2016 which restricted the span of the ex parte ad interim injunction by directing that the specific URL should be blocked and restored the ex parte order granted by the Single Judge that the entire website of Defendants 1 to 73 be blocked. However, the Court noted that if any of the defendant made out a case for vacating the ex parte ad interim injunction by showing that its dominant activity was lawful, the trial Judge would consider modification thereof to block a URL. [Department of Electronics & Information Technology  v.  Star India Pvt. Ltd., 2016 SCC OnLine Del 4160, decided on July 29, 2016]

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