Analysing the Delhi High Court’s recent “Superlative Injunction”, SpicyIP Intern Arnav Kaman highlights the key problems with the order. Arnav is a 3rd Year Law student from Rajiv Gandhi National University of Law, Punjab. He’s interested in Narratives and the Law. His previous post can be accessed here.
The Summer of the Superlative Injunction
By Arnav Kaman
For years now, as cricketers go onto the pitch to bat, the broadcasters of these events go to courts to bat against the rampant infringement of their copyrighted works through online piracy. Though the IPL season has finished, and the courts enter vacation, the Delhi High Court in the case of Star India v IPTV has revealed their latest tactic: A superlative injunction. This injunction, that goes beyond the dynamic+ injunction awarded to the plaintiffs in February, allows for the plaintiffs to ‘avail the grant of real-time relief against the infringing activities of ‘rogue’ defendant irrespective of the mode thereof.’
Right before the vacation break, the courts have thrown a curveball for us to examine, as to how this superlative injunction is different from dynamic injunctions, dynamic+ injunctions and how over the summer the court attempts yet fails to keep an eye on the field.
The Highest Degree of Injunction
Over the past 5 years, courts have become very liberal in granting and extending the powers of injunctions for copyrighted content, (see here and here) especially as the mediums have changed and online piracy too has increased.
Dynamic injunctions first appeared in 2019 with the UTV case where J. Manmohan laid down a new avenue for rightsholders. Instead of the lengthy and arduous process of applying for a judicial order, they could directly approach the Joint Registrar of the Delhi High Court to extend an injunction order granted against a website, or a similar ‘mirror/redirect/alphanumeric’ website showcasing copyrighted content.
In the event there were any new “rogue” websites found, the plaintiffs could implead the new website under Order 1 Rule 10 of the CPC and further the Joint Registrar would issue directions to the ISPs for action against those noted. But rightsholders claimed that it was simply not efficient for them to file ex-post such time-sensitive events considering the irreparable damage to their intellectual property rights.
The Court thus increased the width of these injunctions even to works yet to be created with the dynamic+ injunction, passed in Universal City Studios LLC v. DotMovies.Baby. This also substantially changed the procedure of these injunctions as aggrieved rightsholders could now directly approach the DNRs and ISPs without the middleman of the courts. Plaintiffs were still required to file affidavits along with evidence with the court to ensure a system of checks and balances. Such a requirement created a degree of judicial oversight and accountability, albeit, not up to ideal standards.
The plaintiffs had been granted a dynamic+ injunction in February, and they filed at least 7 impleadment applications which included three new “rogue” mobile applications. They argued even the dynamic+ injunction wasn’t enough for real time blocking, especially considering the upcoming England Tour of India during the Court’s vacation.
The Court thus decided for the umpteenth time to stretch the boundaries and powers of dynamic injunctions to the highest degree, the superlative injunction expands the scope in two important senses:
Firstly, it increases the coverage of the injunction. It now applied irrespective of the mode of dissemination, such as rouge mobile applications, not previously considered. Secondly, it appears that Superlative Injunctions do not require the need to submit affidavits and evidence to the court for judicial oversight, at least for the limited period of its operation, in this case until 03.07.2025, due to the court vacation. Such a deceivingly simple order faces multiple problems, at a closer look.
Who will Watch the Watchmen?
Firstly, considering the extension of the injunctions irrespective of mode. While rogue mobile applications certainly might exist, the order only prima facie considers the veracity of the claims, stating there is “no harm” to extending the previous relief over mobile applications. Yet, different mediums may require a different evidentiary standard that, in this instance, is left only for the Joint Registrar (JR) to examine who operates largely in an administrative fashion. Even then, the JR’s oversight in a dynamic+ is only in name as it operates ex-ante, and with the superlative injunction, it is unclear how, if at all, rightsholders are even required to submit affidavits to the court, thus these applications to block new mobile apps may never face the gaze of judicial scrutiny at all!
Secondly, considering the larger lack of judicial oversight in the order. While it certainly may be burdensome for rightsholders to continuously implead and file applications again and again to the courts, there is a strong reason for the same. Principles of proportionality, equity and balance of conveniences are all factors that only the court may decide, not private parties unilaterally looking to extend their rights over what they deem infringing. Though much of the country will watch the upcoming England Tour, Quis custodiet Ipsos custodes? Who will watch the watchmen? Star India have assigned themselves to be the own watchmen of their own goods, and the courts have given them free reign to protect them, for as long as the vacation lasts.
Even if the court believes themselves to be too overburdened to examine each affidavit and impossible to examine the veracity while the match is going on, they actively erode judicial accountability by not providing any clear standards or guidelines for Internet Service Providers (ISPs) and Domain Name Registrars (DNRs) when considering injunction applications. The court cannot remain willfully ignorant of the blocking that may occur over the vacation; thus, they have a responsibility to maintain a full record of all the websites, domains and apps that the rightsholder seek to block. Furthermore, in the instance, there is an overbroad application of these injunction to bona fide websites and apps being caught in the crossfire, they will have no remedies in the lack of any official record by the court.
The Delhi High Court does not completely disappear during the summer as it continues to have vacation benches that can still serve the purposes of record keeping and remedies for overbroad injunctions. While these benches are usually considered to only be for ‘urgent cases’, the Supreme Court has now begun to refer to their own vacation benches as “Partial Court Working Days” benches, attempting to dispose of more cases than before. Perhaps a change in nomenclature (and perhaps attitude?) would allow the Delhi High Court to be more vigilant during the vacation.
No one wants to work during the vacations, we’re all sympathetic. We want to relax and watch our favorite cricket matches, but courts cannot turn a blind eye to the execution and effects of their own orders and they need not do so. By drafting substantial and comprehensive guidelines and maintaining a record, the courts can create their own superlative system of accountability for injunctions.