We live in a world measured by piracy because piracy means access.[1]

In this world full of capitalism and industrialism, one's personality or personal property rights need to be protected. In India, anyone can easily access anything available on the internet without any permission or restriction and use it for their personal benefit or commercialize it without giving any royalty to that person. One's property right got infringed and he didn't even know the culprit due to a lack of laws and regulations related to content available online.

That's where JOHN DOE ORDER, in India, known as Ashok Kumar comes into the picture. This is a type of legal remedy that allows the plaintiff to take legal action against any unknown person or an unidentified entity. Generally, due to uncertainty of the identification of the defendant mostly these are Ex-parte orders passed against the general public and anyone who infringes IP rights or on the identification of infringer will become the defendant in that case. These types of orders are passed for a particular period of time and one has to renew it further.

Origin and Evolution
The notion of John Doe Orders emerged during the time of English King Edward III through court orders that designated unknown defendants. According to the Oxford dictionary definition, John Doe describes an Anonymous Party.

The Court of Queen's Bench in the United Kingdom created the "John Doe Order" as a special remedy through equity. The order permits the issuance of an injunction that lets the complainant examine and capture the premises of alleged infringers. These orders serve primarily to protect potentially destructive evidence, which simultaneously upholds just action and defends complainant rights. Before the Indian legal system started issuing Ashok Kumar orders, the concept of John Doe orders primarily received judicial acceptance from U.S. and Canadian courts.

The UK John Doe order concept made its first appearance in the JK Rowling v. Newsgroup Newspapers Limited [2] case, where the lawyers for JK Rowling and her publishers obtained an interim injunction against the publishers of the Sun, the Daily Mail, and the Daily Mirror newspapers who offered to sell the chapters of the book Harry Potter.

These orders are well-developed in Canada as well. But a striking feature in the Canadian jurisdiction is that with the development of this concept, several conditions and guidelines have been established towards its enforcement and implementation. It's being properly discussed in the landmark judgement of BMG Canada Inc. vs. John Doe [3], in which the company recorded illegal downloading of music and songs from the internet.
In India, John Doe orders are known by the name of Ashok Kumar orders.

The very first John Doe order was passed in the year 2002, in Tej Television Limited vs. Rajan Mandal [4], in which it dealt with the matter of unauthorized transmission of channel by unlicensed cable operators without entering into agreements with marketing partners of the plaintiff. Anton Piller orders have been passed by the Indian courts as well, highlighting the significance of full and frank disclosure of the plaintiff as well as the appointment of special officers by the court within 14 days to provide a report on the alleged illegal sale, marketing, or distribution of the drawings, designs, and get-up similar to that of the plaintiff. [5]

Current Legal Position in India

In India, an injunction order was granted under Order 39 Rule 1 and 2 of the Code of Criminal Procedure. Other statutes, such as the Trademark Act 1999 and the Global Identification Act, provide such relief. But before passing such orders, substantive damages have already been caused to the plaintiff, which cannot be repaired or compensated.

To avoid this, the Indian judiciary adopted the precautionary principle and introduced John Doe, also known as Ashok Kumar (in India), orders in India. It was first introduced in Tej Television Limited vs. Rajan Mandal [6]  In this case, the Hon'ble Delhi High Court gave Taj Television a John Doe order that restrains unlicensed cable operators from broadcasting the 2002 FIFA World Cup, for which the plaintiff has all the rights.

Discuss Section 151 of the Code of Civil Procedure, 1908, which gives courts inherent powers to issue orders to prevent injustice, including John Doe orders.

Challenges and Criticism
John Doe orders face widespread criticism as they pose a fundamental challenge of lack of defendant's participation, i.e., the absence of a specific defendant not only weakens individual legal preventions but also raises generous concerns related to the fairness of judicial processes that rely on targeting unknown parties. Also, this procedural framework leads to significant legal issues, as anonymous defendants are disposed of their essential rights to be heard, compose an adequate defense, and receive impartial judicial review. Since there is no clearly identified defendant, the basic principle of due process is compromised, as individuals are unable to respond to accusations or present their case properly.

Another criticism this order faces is the potential risk of overreach, particularly in the domain of freedom of speech. It is contented that, due to its vague and expansive nature, it sets a concerning precedent threatening the constitutional rights under the supposed grounds of investigation or protection. By allowing extensive and poorly defined actions against the anonymous defendants, such orders could deter the legitimate discourse and infringe upon the individual's rights to communicate and express themselves.

Impact of John Doe Orders on Digital Rights and Free Speech:

John Doe's order has not evolved much in India and lacks a proper framework for execution. Whenever there is a grey area in regulations, laws are always abused. It can be used to curb the speech of others. John Doe orders are issued as ex-parte orders because the courts lack sufficient time to ascertain the defendants in such cases. However, these orders will potentially erode free speech on the internet because of a range of issues.

As these orders grant power to the copyright holder to strike down websites that were allegedly going to violate their IP right. However, for this right holder, there is a mere need to prove that there is a possibility of harm being caused in the future. Also in these orders, the right holder or internet service provider does not need to give the reason why they are striking down that content which is again in violation of free speech online.

These actions have to be taken from the ISP side so they just block the whole website on the side of caution. Order just means to shut down websites which facilitate these types of activities but due to the broader scope of the John Doe Order, many times it happens blocking illegitimate websites would also result in blocking of legitimate websites. The same happened in the case of Star India v Sujit Jha and Ors,[7]  in this case Delhi High Court ordered the block 73 websites saying:
Thus, unless access to the entire website of the named and unnamed defendants is blocked, there is no alternate and efficient remedy that is open to the plaintiff.  later an appeal was filed before the divisional bench of Hon'ble Delhi High Court which restraint order's effect limited to only certain URLs. By blocking the whole website, we are also violating the free speech of others who are not infringing other's rights.

Considering the effect of blocking the whole website, Hon'ble High Court in UTV Software Communication Ltd. & Ors. vs 1337X.To. & Ors. [8] discussed the test that should be applied before granting John Doe an order to block the website at large and in what manner the order should be enforced and discussed whether a quantitative or qualitative test should be adopted. In John Doe orders, the accused didn't get a chance to present his side, and it is a real threat to freedom of speech online and digital rights. After considering all these factors, the Delhi High Court held that courts need to perform a qualitative evaluation to determine if complete website blocking is actually necessary before issuing a John Die order. The adoption of this essential test is necessary because website blocking on legitimate domains restricts their freedom to speak and conduct business.

Conclusion
John Doe order is a very effective tool to tackle piracy and rampant copyright infringement. It allows the court to take actions against one who cannot be traced or if there is any chance of someone doing so in future. But due to the lack of a standardized framework for the execution of these orders, innocent also have to suffer. A method should be created to execute these extreme orders that involves notification to potential offenders via proper means and their required responses for relief. The implementation goal of John Doe faces a long journey ahead despite its initial objective. An effective prevention mechanism needs to be established to stop such orders from abuse.

End-Notes:

1. Dr. Kalyan C. Kankanala, Pirates of Bollywood (2015)
2. [2003] EWHC 1087 Ch
3. [2004] F.C.J. No. 525 (QL)
4. [2003] F.S.R 24
5. Bucyrus Europe Limited and Anr. vs Vulcan Industries Engineering, 2005 (30) PTC 279
6. (2003) FSR 22
7. (CS (OS) 3702/2014)
8. 2019 SCC OnLine Del 8002 : (2019) 78 PTC 375

Also Read:

• John Doe Order