Image from here
[This post is authored by SpicyIP intern Shikhar Chauhan. Shikhar is a second-year law student at NALSAR University of Law, Hyderabad. He shares a keen interest in developments concerning IP Law.]
On May 2, 2023, the Bombay HC passed a dynamic injunction order in Applause Entertainment Pvt. Ltd. v. Meta Platforms Inc. and others restraining the defendant from publishing clips of the web series “Scam 1992” on Instagram and other social media platforms. On a peripheral observation, the case may seem relatively straight forward, but on a hard look it throws up certain interesting questions on the scope of dynamic injunctions that warrant clarification. This post critically analyses the Bombay HC’s order while testing the court’s reasoning in passing the order. Additionally, it raises crucial questions on clarity in the judgement, which is highly important for setting a precedent for similar future cases.
A quick recap on dynamic injunctions- The concept of dynamic injunctions has been imported in India (UTV v. 1337x.to) from the Singapore High Court’s decision in Disney v. M1. wherein the court entitled the plaintiff to extend the purview of an injunction to other mirror/redirect/alphanumeric websites that host the same content as the originally injuncted website.
Although such orders intended to ease the cumbersome process of obtaining separate judicial rulings, there are concerns (for instance see here, here, here, here and here) over of such an overbroad exercise.
What is the Case About?
The Bombay High Court’s issuance of a dynamic injunction in the present case is one such contribution to this disturbing trend of broad dynamic injunction orders. The plaintiff, Applaud Entertainment Pvt. Ltd., attained all the rights, title and interest of the book “The Scam”, published in 1992. Having acquired all the rights, the plaintiff produced the web series titled “Scam 1992: The Harshad Mehta Story”, a cinematic adaptation of the book. The plaintiff acquired the copyright over the web series and entered into an exclusive licensing agreement with Sony LIV to broadcast the same on their platform.
The issue arose when the plaintiff came across the Instagram handles, marked as defendants Nos. 2 to 34, which were using the abridged versions, clips, other short versions and snippets of the web series. The plaintiff then flagged the relevant concern to Instagram (defendant No.1), through their grievance redressal mechanism. Although Instagram acknowledged the concern, it was not satisfied with plaintiff’s ownership over the said copyright and so, the plaintiff did not get the desired response, leading to the present suit.
Judgement and Reasoning of the Court
The plaintiff filed the present suit seeking urgent restraining orders against the defendant no. 2-34 and also, apprehending that the defendant no. 2-34 will use different identities, the plaintiff sought an Ashok Kumar/ John Doe injunction by including an additional defendant no. 35 as Ashok Kumar.
After perusing the material on record, the court concluded that the present suit constitutes a prima facie case in favour of the plaintiff. The order states that defendants Nos. 2 to 34 have used Instagram to share the audio-visual content of the copyrighted web series illegally. Further, apprehending that the defendants will adopt different identities to continue these infringing activities, the court passed a dynamic injunction order, directing the defendant Nos. 2 to 35 and their associates to remove and restrain from publishing any such media. Furthermore, the court directed Instagram to delete/take down/disable not only the impugned posts, but also the rogue handles and infringing URLs from the platform and disclose all the material information concerning Defendant Nos. 2 to 34 to the court and the plaintiff.
Is a Social Media Handle the Same as a Website?
Although the court held that the three factors for an interim injunction i.e. the prima facie case, the balance of convenience, and irreparable injury were satisfied, the order merely reiterates the arguments advanced by the plaintiff, with little to no reasons on how the same are fulfilled.
Speaking of prima facie cases, usually, a dynamic injunction order is passed against a website and other mirror or “rogue” websites, but in the present case it was issued against a “rogue handle”. Though, this is not the first time when a dynamic injunction order has been passed against a social media intermediary, for instance, in Swami Ramdev v. Facebook, the Delhi High Court against Facebook and other intermediaries, there is still a general lack of clarity over whether “a social media handle” and “a website” are the same and are to be governed by the same laws in context of passing a dynamic injunction.
The Delhi High Court laid down the idea of a “rogue website” and its relevant indicators in the case of UTV v. 1337x.to. The court defined such websites as those which predominantly share infringing content, also terming them “Flagrantly Infringing Online Locations (FIOL)” but the court made no mention of its applicability on social media handles. Similarly, the Bombay High Court passed the dynamic injunction order based on the apprehension of other “rogue handles” getting cropped up. However, whether the indicators of a rogue website apply equally and consonantly to a social media handle remains a crucial question to ponder.
Another issue with the present order is that while blocking the handles of the defendant no(s) 2-34, it does not take into account the other contents that are available on it. There is the possibility that of these defendants a few of could have been genuine social media handles that have several legitimate pieces of content, and that there was a ‘mere re-sharing’ of the content in question in one shared reel or post. There is also the possibility that the handles, used the “short audio-visual” clippings to make Instagram reels. This could have included licensed content from other sources, or fair dealing uses. (see a discussion on this by Anupriya here) Whether they were, in fact, or not, does not seem to have been investigated even summarily in the order.
The possible solution to this conundrum is that the courts develop specific guidelines and explain their reasoning for choosing either of the solutions, treating both as the same or different entities. However, considering the severity of such broad orders, there may be unintended consequences, especially if lack of detailed reasoned orders becomes normalised and they continue to be passed without clarity over the issue at hand.
In the case of Balaji Motion Pictures v. BSNL, the Bombay High Court had already grasped such dangers. It had directed that rather than seeking wide orders, the plaintiffs must specifically identify the infringing website URLs needed to be blocked. However, the court only talked in the context of websites with no clarity over its application on social media handles, being the essential contention of this post.
Finally, the lack of deliberation on these aspects can lead to the misuse of dynamic injunctions and judicial overreach. Without resolving this ambiguity, the court must not treat the two different entities as the same. Else, there appears to be a conflict between the freedom of other entities and the exercise of their legitimate rights with the cost of securing the copyright holder’s rights. Presently, the court’s inclination has favoured the latter at the cost of the former and this carries significant implications for the exercise of free speech by banning other non-infringing content under the garb of legality. The need of the hour is to strike a balance between the two, and the courts must play a significant role in deciding the track of judicial precedents.