Can an injunction be passed against unknown defendants ? is the short question that this post seeks to answer.
The answer is yes. Such orders are known as “John Doe” orders. Simply put, “John Doe” orders or “John Doe” injunctions are “cease and desist” orders passed by a court of law against anonymous persons/entities. The underlying principle is that when the names/ addresses/details of persons who pose a threat (or on whose part a violation of a right is apprehended) are not known, probably due to the sheer number of people involved and also the fact that they their identity may be disguised and veiled. In such cases, the name “John Doe‟ is used to identify unknown/nameless defendants/infringers, who have allegedly committed some wrong, but whose identity is unknown to the plaintiff.
Till their identity becomes known, the court terms the defendants as “John Doe‟. The orders passed by court in such cases are thus popularly known as “John Doe orders‟.
After the passing of the injunction, the order can be executed and violating parties identified and impleaded in the suit for damages for/injunction against copyright violation.
These orders in the recent times have commonly been issued in matters relating of protecting Intellectual Property rights, such as : The protection of copyright in books /audio albums before release, prevention of movie piracy, preventing showcase of movies in cable network during the time of theatre release, and even stopping telecast of live sports events, where exclusive license remains with some channels to the exclusion of all others. “John Doe” Orders are now at the forefront of the legal battle against piracy. In India the word “John Doe” has often been replaced by the word “Ashok Kumar”.
The discretion to grant such relief is usually exercised ex-parte and the conventional principles governing grant of ex-parte temporary injunctions are applied.
- Singham Movie Case.
- In RELIANCE BIG ENTERTAINMENT PRIVATE LTD JYOTI CABLE NETWORK & ORS (2011 Delhi High Court) (Singham movie case), the plaintiff (producer of the movie) apprehended that movie will be made available and sold/distributed in the form of DVDs/CDs in the market and/or shown on TV by cable operators without the authorisation to do so. In such a factual background, interim application was filed for injunction to prevent piracy and loss of revenue to the plaintiff.
- The plaintiff was able to satisfy the tripartite test of grant of injunctions, viz i) existence of prima facie case i) Balance of Convinience tilting in his favour, and iii) Irreperable harm and prejudice on non grant of injunction.
- Since the producer had the exclusive copyright over the movie as opposed to the “John Doe” defendant, prima facie case was found to be in favour of the plaintiff.
- Balance of Convinience also stood tilted in the favour of the plaintiff as the harm and prejudice to the plaintiffs will be irreperable and grave, if the injunction is not granted.
- Apart from the huge monetary implications of piracy, the right of an author of the work to ensure that due respect is accorded to his work was also involved.
- In addition to this, the fact that copyright violation, even otherwise, is an offence under the Copyright Act tipped the scales in favour of the plaintiff and against the defendants.
- In these circumstances, it was clear as daylight that if the injunction was not granted, the plaintiff would have suffered irremediable injury. All these factors weighed with the Court and the court passed “John Doe” order restraining all defendants and other unknown persons constituting part of the same class from distributing, displaying, duplicating, uploading, downloading or exhibiting the movie in any manner.
- Eventually, several Indian ISP’s were were directed to block access to several file sharing websites and take down offending content.
Trivia : A John Doe order is also known as a Quia timet action. (Latin pronunciation: [kweea team-ate], Latin for “because he fears”) which is an injunction to restrain wrongful acts which are threatened or imminent but have not yet commenced.
Latest on John Doe : The Courts have lately deprecated the grant of blanket order of injunctions whereby the whole website is taken down and not the offending link/URL. only. This, it has been argued runs foul of the freedom of speech and expression. Protection of IPR is certainly important, however, there is a need to temper these orders with a sense of proportion so as to ensure that there is no ‘overkill’.