UK High Court makes further orders under s.97A CDPA and CJEU issues ruling in UPC Telekabel regarding proportionality of orders

Further site-blocking orders issued

In a decision of 18 February this year, but only reported recently, Henderson J granted further site-blocking orders under s.97A CDPA

Several major film studios again successfully sought injunctions requiring the six main ISPs in the UK to block access to four websites: viooz.co, megashare.info, www.1.zmovie.tw and watch32.com. As with previous cases, the defendant ISPs did not contest the orders sought. These target websites did not themselves host the infringing content, but instead categorised, referenced, moderated and provided editorial oversight over the content and provided search facilities to enable visitors to their sites to quickly find the content (in this case, films and television programmes) they wished to view. An embedded player in the target sites enabled content hosted on other sites to be streamed to the user.

This was the first order of site-blocking injunctions following the CJEU's decision in Svensson regarding the legality of linking (on which, seehere). Henderson J did not consider that Svensson impacted in a relevant way on the current case. In the present case (as in the previous Paramount case - on which, see here) the operators were "intervening in a highly material way to make the copyright works available to a new audience".

This is the seventh case to date in the UK in which orders have been granted, and the first reported decision of a judge other than Arnold J.

ECJ issues guidance on proportionality of blocking orders

The above decision of the UK High Court was the first since the CJEU delivered its judgment in case C-314/12 UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH, concerning the conditions under which site-blocking injunctions against ISPs are compatible with the balance of fundamental rights under EU law. The court  ruled that injunctions whichdo not specify the measures to be taken by the ISP are compatiblewith EU law subject to certain conditions, which are discussed below. This is a departure from the AG's opinion (on which, see here) which drew a distinction between injunctions in general terms which did not set out the specific measures (not consistent with EU law) and those which require ISPs to take specified steps to prevent access to a website (consistent with EU law).

Firstly, the CJEU agreed with the AG  that under Art 8(3) InfoSoc Directive, injunctions can be issued against ISPs of users of a site which contains infringing content. An infringer is still considered to use the services of such an  ISP of a user of that site, notwithstanding that there is no contractual relationship between the infringer and the ISP.

In terms of the compatibility of such injunctions with EU law, the CJEU highlighted that an injunction which does not specify the measures to be taken enables the ISP to implement measures which are "best adapted to the resources and abilities available to him and which are compatible with the other obligations and challenges which he will encounter in the exercise of his activity". The CJEU ruled that the fundamental rights recognised by EU law do NOT preclude site-blocking injunctions issued against ISPs when that injunction does not specify the measures  which the ISP must take and when that ISP can avoid incurring coercive penalties for breach of that injunction by showing that it has taken all reasonable measures. However, this is subject to the following conditions: (1)  the measures taken must not unnecessarily deprive internet users of the possibility of lawfully accessing the information available and (2) those measures must have the effect of preventing unauthorised access to  the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging internet users from accessing that subject-matter.

UK practice on blocking orders

This decision is unlikely to change the approach of the UK courts to date: both Arnold J, and in the more recent case Henderson J, have taken the view that the orders sought (and largely agreed by the ISPs) are proportionate and that the balance of competing rights comes down in favour of granting the orders.

More recently, it has been reported that the luxury conglomerate Richemont is seeking injunctions against ISPs requiring them to block access to websites selling counterfeit watches and jewellery. What is clear is that the law in this area is ever expanding - watch this space…