UK ISPs Fail to Overturn Site Blocking Order

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In 2014, the High Court ordered Sky, TalkTalk, BT, Virgin Media and EE to block websites dealing in counterfeit luxury products. The ISPs appealed the case on a number of grounds, including that the court had no power to order the injunctions. That appeal has now failed.

stopstopSite blocking in the UK has become a hot topic after the world’s leading entertainment companies successfully applied for injunctions against many hundreds of ‘pirate’ sites.

In response, Compagnie Financière Richemont S.A., which owns several well-known luxury brands including Cartier and Mont Blanc, decided to get in on the action.

In 2014, Richemont wrote to the UK’s leading ISPs – Sky, TalkTalk, BT, Virgin Media, EE and Telefonica/O2 – with a request to block several sites offering counterfeit products. In common with earlier cases involving The Pirate Bay and KickassTorrents, the ISPs refused and the case went to court.

In October 2014, the High Court ruled in favor of Richemont, stating that counterfeit product sites must be blocked in the same manner as torrent and streaming portals.

Despite this being a trademark case, the judge found that he had jurisdiction to order an injunction and that the ISPs should pay for any blockades to be implemented.

In a statement, a Richemont spokesperson told TorrentFreak that the decision was a positive step. However, the matter was not over. While the ISPs seemed happy to accept the High Court’s decision in respect of ‘pirate’ site blockades, they decided to contest the luxury brand injunction.

In their appeal, the ISPs complained that they are innocent parties and that the Court had no jurisdiction to hand down a blocking order. However, even in the event that it did have jurisdiction, the ISPs said that certain thresholds required for an injunction had not been met.

Continuing, the ISPs said that the judge had failed to apply the correct principles in deciding whether or not to hand down an order, and that the orders made were disproportionate. Finally, the judge should not have ordered the ISPs to foot the bill for blocking the infringing sites.

This week the Court of Appeal handed down its long awaited decision and it’s almost completely good news for the brand owners.

Dismissing the ISPs’ appeal, the Court said that High Court did indeed have the power to issue the blocking injunctions and that all the legal thresholds for doing so had been met.

“Each of the target websites was directed to consumers in the United Kingdom and the operators of those sites were advertising and offering for sale counterfeits of the goods of one of the named claimants,” Justice Briggs wrote.

“The [High Court] judge was entitled to make an order to try to prevent this happening for the third sentence of Article 11 of the Enforcement Directive and Article 8(3) of the Information Society Directive are concerned not only with measures aimed at bringing infringements of intellectual property rights to an end but also with measures aimed at preventing them.”

Interestingly, on the issue of who would pay for the site-blocking to be carried out, the Court of Appeal had some sympathy for the ISPs

“In my judgment the cost burden attributable to the implementation of a particular blocking order should fall upon the rightsholder making the application for it,” Justice Briggs wrote.

“In circumstances where valuable intangible rights of this kind need to be protected from abuse by others, I regard it as a natural incident of a business which consists of, or includes, the exploitation of such rights, to incur cost in their protection, to the extent that it cannot be reimbursed by appropriate orders against wrongdoers.”

But that doesn’t mean that the ISPs are completely off the hook. Justice Briggs said that while the ISPs wouldn’t have to pay the costs associated with implementing a blocking order, they would still have to foot the bill for “designing and installing the software with which to do so whenever ordered.”

Richemont lawyer Simon Baggs welcomed the decision.

“The court has recognized that often the best way for online unlawful activity to be stopped is for intermediaries such as ISPs to cut the Internet lifeblood that the websites need to trade,” Baggs said.

“Site blocking is a developing area in many jurisdictions globally and this judgment should further enable the growth of this important remedy.”

The ISPs still have the possibility of taking their case to the Supreme Court but no announcement has yet been made.


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