Copyright owners, ISPs cannot decide if website is ‘rogue’: Delhi High Court

The Delhi High Court recently held that neither copyright owners nor internet intermediaries can conclusively decide whether a website is a “rogue website” liable to be blocked [Home Box Office Inc & Ors v. Streamzy.to & Ors].

Justice Anup Jairam Bhambhani said that while copyright owners should not be required to approach the Court afresh whenever a piracy website resurfaces through another domain, the ultimate determination must remain with the Court.

“Such decision cannot be left either to the unilateral assessment of the plaintiffs or to the sole satisfaction of an intermediary,” the Court said.

The ruling came in a copyright infringement suit filed by Home Box Office Inc (HBO) and others against 30 groups of websites accused of illegally streaming their movies and television shows.

HBO submitted that the websites made movies available immediately after their release and, in some cases, even before release. It added that their operators had concealed their identities through privacy protection services.

The Court prima facie found that the websites bore the hallmarks of flagrantly infringing online locations. Their registrant details were masked, no traceable contact information was available and the content accessible through them was overwhelmingly unlicensed, it noted.

“This is, therefore, not a case of incidental infringement, but one where the primary purpose of the websites appears to be to facilitate infringement of the plaintiffs’ copyright,” the Court observed.

Domain name registrars appearing in the case said that they had no objection to blocking the websites already identified. However, they opposed a blanket direction requiring intermediaries to block any website subsequently identified by HBO through an affidavit.

The Court acknowledged that piracy websites frequently circumvent injunctions by resurfacing through mirror, alphanumeric or redirect domains. However, it refused to give HBO, internet service providers (ISPs) or domain name registrars (DNRs) carte blanche to block websites without judicial scrutiny.

“An ISP or DNR is, in the ordinary course, a neutral intermediary. It is not the function of such intermediary to determine whether any particular website is a ‘rogue website’,” the Court said.

The Court instead devised a procedure under which HBO may notify an ISP or DNR about a suspected mirror website through an affidavit supported by evidence. The intermediary can only technically verify whether the domain is a mirror, alphanumeric variation or redirect of a website already injuncted.

If that technical link is established, the intermediary must extend the injunction to the new domain as a temporary measure. HBO must simultaneously apply to the Court to implead the website. The Court will then decide whether the block should continue.

The Court clarified that intermediaries must remain neutral to retain safe-harbour protection under Section 79 of the Information Technology Act, 2000. Any false, baseless or mala fide assertion by HBO could invite appropriate orders.

It thus granted an interim injunction against the websites identified in the suit

The plaintiffs were represented by Advocates Saikrishna Rajagopal, Suhasini Raina, Raghav Goyal, Aditya Sing Thakur and Affan Moin.

Advocates Kruttika Vijay, Harshitha Rathod, Suvarna Singh, Shweta Sahu and Deeksha Pokhriyal appeared for defendants.

Central Government Standing Counsel Manisha Agrawal Narain and Government Pleader Nipun Jain represented the Department of Telecommunications and the Ministry of Electronics and Information Technology.

[Read Judgment]