The Supreme Court decides that ISPs do not have to bear the cost of blocking orders

In 2014 the claimants, Richemont, owners of the Cartier and Montblanc brands, sought orders against the five main internet service providers (ISPs) in the UK. Between them these ISPs have a market share of 95% of UK broadband users. The application sought orders requiring the ISPs to block access by their subscribers to a number of websites which advertised and sold counterfeit goods.

There is no specific provision under UK law which allows rights holders to seek and obtain injunctions against ISPs. However, Arnold J held that blocking injunctions were available in trade mark cases as a result of its inherent jurisdiction to grant injunctions under section 37 of the Senior Courts Act 1981. He further held that ISPs should generally bear the costs of implementation as part of the costs of carrying on business in this sector.

On appeal the Court of Appeal agreed with Arnold J with Briggs LJ dissenting on the question of costs.

The issue of who should bear the cost of implementation of blocking orders was appealed further to the Supreme Court. On 13 June 2018 the Supreme Court handed down its decision. Overturning Arnold J’s decision, the Supreme Court held that it was for the rights holders to indemnify the ISPs in respect of the reasonable costs of implementing the orders. The Supreme Court took the view that the implementation of blocking orders was entirely in the interests of rights holders and not to the benefit of ISPs who are ‘legally innocent’.

Blocking injunctions are a powerful tool in combatting online infringement, but clearly will come at a cost to rights holders.

Authored by Claire Birro

Posted on: 21st June 2018