In another pragmatic order dealing with the until-recently fairly haphazard regime of John Doe blocking of pirated movies on websites, Justice Gautam Patel of the Bombay high court has cited an article by Legally India published in Mint as “quite excellent”, “extremely well researched, thoughtful and incisive” (see excerpt above).

First of all, our personal thanks to Justice Patel for the very generous mention and praise. If you haven’t yet, please do also check out the full article in Mint or on Legally India, which highlighted lacunae and technical issues in the John Doe blocking jurisprudence that had developed organically in the last few years.

(Patel incidentally, had earlier also referred to Spicy IP blog posts on the topic as persuasive in his orders).

And it’s a great order too, exhibiting great nuance from Patel in dealing with what is clearly a tricky technical and legal issue that the current laws are ill equipped to deal with.

By background, the original plaintiff, Eros International, was represented by RM Partners partner Nikhil Rodrigues, and had secured a blocking order of URLs relating to the Bollywood film Dishoom.

The 11th respondent Tata Communications, represented by senior counsel Viraag Tulzapurkar and instructed by Trilegal counsel Ashish Bhan, however, applied to the court arguing that its previous order of directing an error message to be displayed when a URL was blocked, was “technically not feasible”.

As first reported by Spicy IP, Patel in his 12 August order rejected Tata’s argument that it was not possible for a service provider to customise website error messages for each blocked page.

But Patel made a concession following Tulzapurkar’s submissions, allowing service providers to post a more generic error message that would not have to include the names of the case under which a URL was blocked and the names of the lawyers and parties involved, but would simply state:

This URL has been blocked under the instructions of the Competent Government Authority or in compliance with of a Court of competent jurisdiction. Viewing, downloading, exhibiting or duplicating an illicit copy of the contents under this URL is punishable as an offence under the laws of India, including but not limited to under section 63, 63-A, 65 and 65-A of the Copyright Act, 1957 which prescribe imprisonment for 3 years and also a fine of upto Rs 3,00,000/-.

Any person aggrieved by any such blocking of this URL may contact [.] at [.] (nodal officer detail) who will, within 48 hours, provide you the details of relevant proceedings under which you can approach the relevant High Court or Authority for redressal of your grievance.

While Patel noted that this solution was “sub optimal”, since it depended on the “unmonitored, unsupervised” nodal officer, over whom there was “no oversight whatever”, being prompt in their response.

If a nodal officer did not respond, this would leave little recourse for those whose URLs were blocked in error - such as the legitimate DVD seller whom we interviewed in our Mint article after he found his website erroneously blocked.

Patel also explicitly approved of a proposal by Professor Shamnad Basheer quoted in our Mint article, that the idea of an ombudsman as a self-regulatory body with responsibility for blocking was “indeed appealing” and “worth exploring and developing further”.

Basheer has written in more detail about what such an ombudsman could look like in a subsequent article in The Wire.

The effect of the order - with blocking notices on websites mentioning jail terms - were misreported to mean that those visiting the URL had opened themselves up to criminal action.

However, a blog on Legally India by NLU Delhi’s CCG clarified that nothing had legally changed and that merely viewing the blocked URLs was not a crime under the law.

Bombay HC Gautam Patel Order on Tatas and Ombudsman citing Legally India and Mint