Not too long ago, while the Indian Premier League was being played on the field, a parallel battle was being fought for intellectual property in the Indian courtrooms. In an unprecedented decision, the Delhi High Court, in the case of Star India v. IPTV, while addressing the prevalence of digital piracy in cases of live streaming platforms, crafted an expansive remedy — the Superlative Injunction. This relief allows the plaintiffs to block rogue websites and applications in real-time without judicial vetting.
In its radical model, it places enforcement discretion in the hands of private parties, raising serious concerns. Since Superlative Injunctions (SI) tend to block entire websites rather than taking down infringing parts of the websites it may be prudent that this innovation is tempered with procedural safeguards to prevent it from being an instrument of overreach.
Evolution of Superlative Injunctions
Traditional injunctions have struggled to counter online piracy, where infringers can reappear with new domains in minutes. To address this, dynamic injunctions were introduced, allowing blocking of proxy versions of already identified rogue websites without having to return to court each time, as per Utv Software Communication Ltd. And Ors vs 1337X. To and Ors case.
This was followed by dynamic+ injunctions, which went a step further by additionally protecting creations that had not yet come into existence. Issued in Star India Pvt Ltd v https//crichdplayer.org/, this proved to be particularly valuable for live sports broadcasts.
These measures marked a shift from court-approved lists to flexible enforcement, setting the stage for SI.
The concept finally emerged in Star India Pvt Ltd v IPTV Smarters Pro , where the court considerably widened the protection afforded by earlier injunctions. Although the judgement did not expressly examine Section 55 of the Copyright Act, 1957, which provides for remedies “by way of injunction” in cases of infringement, the relief granted expands its scope. One could act not only against infringing websites but also against mobile applications. They were also empowered to coordinate directly with internet service providers (“ISPs”) for real time blocking of such websites. This eliminated the need to repeatedly approach the court during time sensitive events such as live broadcasts.
Convenience over Constitutionality?
While SI shows a progressive response by the Indian judiciary to growing piracy concerns, it also opens up a pandora’s box of procedural and constitutional challenges. Traditional and dynamic injunctions are subjected to judicial review and have procedural safeguards for both parties. However, SI give blanket powers to private players who are usually corporate bodies guided by self-interest to block any website in real-time.
There are no evidentiary or factual assessment standards for the plaintiffs to adhere to, thus making them both the beneficiaries and the executors of such relief. As held in Anuradha Bhasin v Union of India, any restriction on freedom of speech and expression must be ‘least-restrictive’. However, SI give broadcasters power to put blanket restrictions based on a flawed assumption that these commercial entities will undertake a good faith assessment of the contents of the rogue websites.
Both dynamic and dynamic+ injunctions have traceable affidavit mechanisms where the Joint Registrar acts as the supervisory body. In contrast, in the case of a SI, the ISPs and domain name registrars have no regulatory obligations upon them, increasing the risk of over-blocking of even bona fide websites, leaving them without recourse.
This approach is inconsistent with international best practices. By looking at other major jurisdictions, such as the United States and the United Kingdom, one can understand how similar issues are tackled by focusing on procedural safeguards and proportionality. In the United States, the Digital Millennium Copyright Act (“DMCA”) under Section 512 (g) allows affected parties to get their content restored by providing a counter notice to ISPs. In the United Kingdom, where there exist no specific provisions to govern such injunctions, the courts have evolved the remedies through judicial pronouncements. In Cartier International AG v British Telecom, the UK Supreme Court held that technical feasibility and proportionality must be seen before granting blocking orders.
Similarly, the Court of Justice of the European Union in UPC Telekabel Wien GmbH v Constantin Film, held that blocking orders must be specific, proportionate, and capable of being technically implemented without any overreach.
All these jurisdictions provide for adequate safeguards while in India, there exists no mechanism for the affected parties to contest a takedown. SI raise serious concerns as these takedowns come without a sunset clause or any periodic review. By the time the courts acknowledge the wrongful takedown, substantial harm would have been caused given the time-sensitive nature of the content.
Further, it remains unclear which standard would apply when granting a SI Under the qualitative test laid down in Department of Electronics and Information Technology v Star India Pvt. Ltd , the plaintiff must show that the rogue website’s overall objective is to pirate the plaintiff’s content.
In contrast, the quantitative test applied in Eros International Media Ltd v BSNL requires proof of the extent and volume of infringement by the rogue website.
The Supreme Court in Cellular Operators Association v TRAI has emphasised upon the importance of empirical data when adjudicating upon technologically complex questions but this approach is rarely adopted.
In cases like Neetu Singh v. Telegram, courts have solely relied on the plaintiff’s affidavit. Enforcement challenges during live streaming events do exist, but courts need to examine relative harm: Whether the short-term commercial loss from a pirated website outweighs the long-term harm to judicial oversight and freedom of expression caused by unchecked blocking? Can convenience override constitutionalism without adequate safeguards?
The Way Forward
SI must be reconciled with constitutional safeguards. The court-made mutations of traditional injunctions need to be codified either through the amendments to the Copyright Act, 1957 , or through delegated legislation under the Information Technology Act, 2000. The statute must outline evidentiary thresholds that need to be met, which may include technical affidavits. It must also consider procedural safeguards allowing for serving of counter-notices akin to Section 512 (g) of the DMCA and temporal limitations specifying whether such injunctions should be limited to time-sensitive events. Limitations outlining whether only the infringing portions of the websites would be taken down, or the entire website and review mechanisms in case a website is blocked should also be considered.
The courts must maintain a supervised log of all blocked domains, mobile applications, etc. The Joint Registrar could maintain such a list with affidavit based justifications. Each entry must specify a date upon which the block would expire and be subjected to judicial review to determine whether such blocking should be continued. Drawing from Australia’s eSafety Commissioner and Ofcom’s role in the UK, India could consider establishing a Digital Infringement Review Board (DIRB), under Ministry of Electronics and IT or DPIIT to take cognisance of such matters, especially during court vacations. With intellectual property expanding across various forms, such relief is required but it must be ensured that SIs are supplemented with superlative responsibility.
The writers are 4th Year students of BA, LLB (Hons.) at National Law University, Jodhpur