BALAJI MOTION PICTURES LTD AND ANR.

                                                                     V.

                                     BHARAT SANCHAR NIGAM LTD. AND ANR.

An analysis of the recent order of the Bombay High Court relating to “John Doe” or “Ashok Kumar” orders and the changing trends in granting the same.

INTRODUCTIONS

In India, Intellectual Property Right is become the most prominent form of litigation and due to the niche area, the implications of such litigation have far and wide implications. The John Doe orders are one of the example in the present area, John Doe or Ashok Kumar orders are injunction orders taken by the aggrieved party from the Hon'ble Court in India where the accused/ culprit are either unknown and /or uncertain (unidentifiable defendants). The most utilized form of such orders are seen in the Bollywood industry where the producers of the movie obtain such order from restricting online piracy of their soon to be launched movies by way of online websites and torrent based services.

This update analyzes the recent decision of the High Court of Judicature at Bombay (Bombay High Court) in Balaji Motion Pictures Ltd and Anr. v. Bharat Sanchar Nigam Ltd. And Anr. relating to the change in trends in granting such orders. The Judgment rules on three major issues.

1. That the Hon'ble High Court rules that blanket orders too wide and relating to entire websites shouldn’t be given and judicial restraint should be exercised.
2. The Hon'ble High Court notices that grating such orders in its widest implications, if not downright dangerous, requires the introduction of some caution and judicial circumspection.
3. The Hon'ble High Court in its view welcome critiques where there is a point well-taken by academic writings.

FACTS

1. Balaji Motion Pictures Ltd (BMP) approached the Hon'ble High Court of Bombay on 01.07.2016 to obtain a John Doe or Ashok Kumar order against 800 website on the pretext that their upcoming feature film “Great Grand Masti” part three of the “Masti Series” was leaked online and was being shared by the various websites and also showed feeds and tweets highlighting the same.
2. Hon'ble Justice G.S Patel while taking cognizance of the matter refused to pass a John Order since the reliefs stated were overbroad since they were targeted against the entire websites and not specific URL’s (Universal Resource Locator), thereby stating that such an action would ex hypothesi, state every single bit of digital matter on every single one of those websites are illicit without any form of trial and determination and passed orders for renewal of the application for John Doe orders to be made against specific links and posted the matter thereafter for 04.07.2016.
3. The Hon'ble judge also went a step further and stated that such orders would also be time bound and would not be allowed to continue indefinitely.
4. Upon taking cognizance of matter again on 04.07.2016, the Hon'ble Judge wrote in his order dated 04.07.2016 that there is a long history of such orders but that in itself is no reason to continue with a trend that seems to be if not downright dangerous, at least one that requires the introduction of some caution and circumspection.
5. The Hon'ble Judge referred to some instances of critiques against such John Doe orders on basis of certain legal sites and journals for the width, ambit and tendency of such orders to stand for a long time without sufficient judicial oversight in the interregnum.
6. The Hon'ble Judge, after going through the revised affidavit with specific links, noted that such information can be obtained with such apparent ease and therefore agreed that the critiques on such sites and journals are well-founded.

IMPLICATIONS

1. This fair and open minded view by the Hon'ble High Court of Bombay is a most welcome move for the purpose of John Doe orders.
2. There are various examples where certain websites are blocked indefinitely even after the disposal or withdrawal of matters, which are usual results of such matters and therefore, such a view doesn’t only insure justice, equality and good judicial restraint but is most apt example of fair play and unbiased action against any website in its entirety.
3. This view shall further ensure that aggrieved parties can’t take the courts on a ride while crying wolf without cogent evidences on record and would effect the entire regime of Intellectual Property Right’s related injunctions thereof.