Article: Are Dynamic Injunctions Permissible Under Section 151 CPC?

Author: Intern - Ankita Panwar

Introduction

With the speedy growth of digitalization, digital piracy has become common for the copyright holders and rights of these holders are often being affected either due to insufficient remedy or insufficient guidelines. Normally the aggrieved parties file for an infringement suit in a civil court seeking an injunction, to restrict websites from infringing trademarks or copyright-infringing data and then injunction is granted against the infringing party. But sometimes injunctions provided in such cases do not necessarily work the way they’re expected to. Often the infringing data is merely shifted onto a different database server and is then either re-uploaded or re-introduced onto another platform. Therefore in order to cope with the mechanism of the internet and in order to reinforce the right holders, a new type of injunction that is the dynamic injunction came to be introduced in some foreign jurisdictions to enforce digital rights. 

Section 151 of the Code of Civil Procedure (CPC) provides “Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” The question arises – Does the framework of Section 151 of the CPC enable dynamic injunctions, particularly, in tackling cases related to digital piracy? Are dynamic injunctions “necessary for the ends of justice” within the meaning of Section 151? Are they required “to prevent abuse of process of the court” within the meaning of Section 151? 

Nature and origin of dynamic injunctions

Dynamic Injunctions as a legal remedy are recently developed as a modern strategy to curb the menace of the rising pirated websites by copyright holders. It is a type of injunction order made by a judicial bench of a court that allows copyright holders to appear repeatedly in front of the Joint Registrar of a court in order to extend the injunction order against mirror or rogue websites containing similar content as the original website. These types of injunctions were introduced as an advancement or modification to the conventional injunctions that blocked websites and which also could not provide adequate relief to the rightful holders.

Necessity for the ends of justice

Dynamic injunctions as a legal remedy have found their way into various jurisdictions across the world including India as well. In India, the relief was first granted in the case, UTV & Others. V. 1337x.to & others [1] which was delivered on April 10, 2017. In this case the Delhi High Court in order to grant a dynamic injunction, under Section 151 of Civil Procedure Code observed its inherent powers in order to put limitations on the websites which were reappearing with an altered name. The Court then encompassed a standing injunction to these new websites, which could possibly appear with a different label in the future. This judgement was delivered by citing case of Disney Enterprises, Inc. v. M1 [2] in which the High Court of Singapore granted a dynamic injunction and held that “the plaintiff was under no obligation to return to court for an order concerning every single IP address of the infringing URLs already determined by the Court.”

Preventing abuse of the process of the Court

In the UTV case (supra), the Court laid down certain conditions to identify sites as Rogue/FIOLs (Flagrantly Infringing Online Locations) for the purpose of extending the injunction. Therefore, the Delhi Court adopted the term FIOLs from the Singapore Court in the context of such websites. The court observed that these are those websites which primarily share the infringing content of the right holders and also whose registered details are also masked. Hence the conditions which were laid down by the Court were whether the website primarily intends at copyright infringement; whether the website hides the information of the registrant; and whether there is delay in taking down the copyright infringed content after receiving a takedown notice.

Pursuant to the UTV judgement (supra) similar orders have since been passed by the Delhi High Court in batch petitions filed by Warner Bros. Entertainment Inc. [3] and Snapdeal Private Limited [4]. The High Court of Delhi in these orders has observed that website blocking in the case of mirror or rogue websites stabilizes benefits between ‘free and open internet’ and ‘digital piracy ’. Dynamic website blocking is a measure to deal with the issue of dynamic infringement.  Still, this author is of the view that the court should pass dynamic injunctions only when it is essential. Otherwise, Joint Registrars in their administrative capacity will end up exercising judicial functions vested only in judicial benches. 

Conclusion

From the above it is clear that there is definitely a requirement for a mechanism like dynamic injunction in order to have a simple solution for the techno-legal complexities presented in digital piracy cases. The language of Section 151 of the CPC happens already to be broad and general enough to comprehend dynamic injunctions as being within its scope even if this statutory provision pre-dates the digital era. Therefore, it is permissible for the courts to apply the concept of dynamic injunctions to make sure that its injunctions are not easily circumvented by defendants. Such expansive interpretation of Section 151 of the CPC strengthens the adjudication process and keeps pace with the growth of the internet.

 References:

1.          UTV Software Communication Ltd. v. 1337x.to – Judgement dated 10-4-2019 in CS (COMM) 724/2017 and Ors. , Delhi High Court [Manmohan, J.]

2.          Disney Enterprises, Inc and others v. M1 Ltd and others [2018] – Judgment dated 19-09-2018 in SGHC 206, Singapore High Court [Lee Seiu Kin, J.]

3.          Warner Bros. Entertainment Inc. v. http.//tamilrockers.ws and others – Order dated 24-07-2019 in CS(COMM) 369/2019, Delhi High Court [Sanjeev Narula, J.]

4.           Snapdeal Private Limited v. Snapdeallucky – draws.org.in & Others – order dated- 20.07.2020 in CS(COMM)no.264/2020 & I.A.NOS.5848-52/2020, Delhi High Court [Rajiv Shakdher, J.]

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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