Website Blocking Orders Against ISPs Offer Powerful Protection For Brand Owners

In the last few years, numerous blocking orders have been obtained by music and film copyright owners pursuant to section 97A of the Copyright, Designs & Patents Act 1988. This significant legal development has resulted in Internet Service Providers (ISPs) preventing their customers from accessing peer-to-peer file‐sharing websites. Such websites allow users to select and download various files from an organised directory of content.

In the recent case of Cartier International AG & Others v British Sky Broadcasting Ltd & Others [2014], the High Court concluded that blocking orders may also be sought in respect of websites selling and advertising counterfeit goods, although there is no statutory equivalent to section 97A. This decision has paved the way to imposing more burdens on ISPs, as it is the first time that blocking orders has been awarded to brand owners in this way.

Proportionality of blocking orders

As a test case, this judgment contains a thorough assessment of the proportionality of blocking orders. The key question of proportionality was whether the likely costs imposed to the ISPs are justified by the likely efficacy of the blocking measures.

To that end, the judge reviewed less burdensome alternative measures to prevent access to the websites and concluded that none of these alternatives were as effective as blocking orders. Critically, the latter allow ISPs to react to operators’ attempts to circumvent site blocking, in a way that is not possible with other alternative options.

Moreover, expert evidence showed that section 97A orders have resulted in a decrease in the overall level of infringement in the UK. Accordingly, the judge concluded that the orders were proportionate and should be granted subject to certain safeguards.

Comment

Another request for website blocking orders, this time to prohibit copyright infringement, was made following the Cartier decision. In this subsequent 2014 case 1967 Ltd & Others v British Sky Broadcasting Ltd & others, the High Court granted an order for similar reasons to those provided in Cartier. Significantly, this case involved the biggest website blocking with a single application to date.

Therefore, there is no doubt that the reasoning in Cartier will be useful tool for copyright owners when evaluating their applications to request a website blocking order. Highlighting the vulnerability of ISPs, it is also likely that the Cartier case will cause an increase in the number of applications.

For specialist advice regarding blocking orders or other enforcement actions to protect intellectual property rights contact Peter Gourri today by email PGourri@rollingsons.co.uk or telephone 0207 611 4848.