Website blocking orders

Produced in partnership with Daniel Byrne of AA Thornton

The following IP practice note produced in partnership with Daniel Byrne of AA Thornton provides comprehensive and up to date legal information covering:

Website blocking orders
Background
Website blocking based on infringement of copyright
Newzbin2—the first ISP blocking order
The pirate bay—no requirement that the website operator be subject to proceedings
EMI Records—simplified procedure and proportionality
UPC Telekabel—the measures to be taken by ISPs
Subsequent cases—useful guidance
Targeting streaming servers as opposed to websites
Website blocking based on infringement of trade marks

More...

Cartier International
Threshold conditions for exercising jurisdiction to grant an injunction in a trade mark case
Principles to be applied when deciding to make an order
Necessary
Effective
Dissuasive
Not unnecessarily complicated or costly
Avoid barriers to legitimate trade
Fair and equitable and strike a 'fair balance' between fundamental rights
Proportionality
Alternatives
Costs
Forms of order
Extension of the principle to infringement of other rights
What next on the horizon?

Background

The ability to block websites is within the power of the internet service providers (ISPs) who provide the service of connecting users to internet content. ISPs generally have a defence from claims (for example, of copyright infringement) in relation to content transmitted over their networks (as a mere conduit) under the EU E-Commerce Directive. For more on ISP liability, see Practice Note: ISP and intermediary liability. ISPs are a favourite target for rights holders seeking to enforce their IP rights in relation to use on the internet (compared to bringing proceedings against the operators or users of the websites) because they operate within the jurisdiction, are significantly less numerous, and respect the court. Further, the available forms of order are flexible enough to allow for anti-circumvention measures.

The power for the court to order ISPs to take certain action in relation to copyright infringement comes from Article 8(3) of the EU InfoSoc Directive (Directive 2001/29/EC), implemented by section 97A of the Copyright, Designs and Patents Act 1988 (CDPA 1988). In relation to websites which infringe trade marks, the jurisdiction to make such an order (see further below) comes from section 37(1) of the Senior Courts Act 1981 (SCA 1981) (previously known as the Supreme Court Act), which is in compliance with Article 11 of the EU Enforcement Directive (Directive 2004/48/EC).

The option of disconnecting subscribers who

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