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...

Website blocking orders

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).

Copyright and other IP rights owners may obtain an injunction under section 97A of the CDPA 1988 against an ISP, where that ISP has actual knowledge of another person using their service to infringe copyright. In determining whether a service provider has actual knowledge, the court takes into account all relevant matters, including whether

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