Delhi High Court’s Stance on ‘Rogue Websites’
In a significant ruling, the Delhi High Court has clarified that neither copyright holders nor internet service providers (ISPs) have the authority to unilaterally determine whether a website is deemed ‘rogue’ and thus subject to blocking. This determination is reserved for the judiciary [Home Box Office Inc & Ors v. Streamzy.to & Ors].
Justice Anup Jairam Bhambhani emphasized the necessity of judicial oversight, stating that although copyright holders should not be required to approach the Court each time a piracy website reappears with a new domain, the final decision 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,” remarked Justice Bhambhani.
The case was initiated by Home Box Office Inc (HBO) and other plaintiffs against multiple websites accused of unauthorized streaming of their films and TV series. HBO contended that these sites were distributing movies soon after or even before their official release, while the site operators remained anonymous using privacy services.
The Court found that the sites in question exhibited classic traits of infringing online locations—hidden registrant details, lack of contact information, and predominantly unlicensed content. “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,” observed the Court.
Domain name registrars involved in the case expressed no opposition to blocking the specified websites but resisted any directive that would compel intermediaries to block any site subsequently identified by HBO, unless sanctioned by a Court order.
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The Court acknowledged the adaptive strategies of piracy websites, which often bypass injunctions by creating mirror or redirect domains. However, it declined to authorize HBO, ISPs, or domain name registrars to block websites without Court evaluation.
“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 noted.
A procedural framework was established, allowing HBO to inform an ISP or DNR of a suspected mirror website through a verified affidavit. The intermediary can only conduct a technical verification to ascertain if the domain is a mirror, alphanumeric variation, or redirect of an already injuncted site.
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If such a link is confirmed, the intermediary must temporarily extend the injunction to the new domain, while HBO files a motion with the Court to review the block. The Court will then decide on the permanence of the action.
The Court stressed that intermediaries must act impartially to maintain the safe-harbour protection afforded by Section 79 of the Information Technology Act, 2000. Any false or baseless claims by HBO could lead to legal consequences.
An interim injunction was granted against the websites identified in the lawsuit. The legal representation for the plaintiffs included Advocates Saikrishna Rajagopal, Suhasini Raina, Raghav Goyal, Aditya Sing Thakur, and Affan Moin. The defendants were represented by Advocates Kruttika Vijay, Harshitha Rathod, Suvarna Singh, Shweta Sahu, and Deeksha Pokhriyal. 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.
