2015: the year of blocking injunctions?

Here's the Editorial for JILPLP's issue 3, March 2015. The author is JIPLP Deputy Editor Eleonora Rosati.

2015: the year of the blocking injunctions? 

Improving the legal framework for online enforcement of IP rights, notably copyright, has probably been the most debated policy topic in a number of jurisdictions in 2014, and will probably also be so in 2015.

The recent decision of the Court of Justice of the European Union (CJEU) in UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbH, C-314/12, EU:C:2014:192, clarified once and for all that blocking orders are compatible with EU law, and that it is left to the internet service providers (ISPs) to determine how best to achieve the result sought by the relevant rightholder(s).

Moreover in the landmark decision in Cartier and Others v BskyB and Others [2014] EWHC 3354 (Ch), by which the High Court issued the first blocking order in the UK against a number of websites that advertised and sold counterfeit goods, Arnold J expressed the view that currently there are no measures which are as effective as blocking orders. Although blocks may be circumvented (in its 2011 report entitled “Site Blocking” to Reduce Online Copyright Infringement: A Review of Sections 17 and 18 of the Digital Economy Act, OFCOM indeed concluded that all blocks may be circumvented), measures such as notice-and-takedown, de-indexing or payment freezing do not appear to have the same efficacy as blocking orders.

The conclusion of Arnold J is particularly relevant with regard to payment freezing, considering that recent papers, eg the Discussion Paper by Mike Weatherley MP entitled Search Engines and Piracy in the UK, the Action Plan on the enforcement of IP rights that the last EU Commission issued shortly before the end of its term of office, and the 2014 edition of How Google Fights Piracy, argued instead that ‘Follow the Money’ is the approach with the best potential in terms of efficacy. Although payment freezing would have the advantage of a worldwide effect, Arnold J held the view that it would also allow the offending website to continue until it is so starved of funds that it ceases operation. It is unclear whether such time would ever come though, on consideration that the website at hand may simply shift to alternative payment methods.

Arnold J also rebutted one of the arguments often advanced against the availability of blocking orders, ie that they are costly for ISPs to implement. Evidence would suggest that the average cost of an unopposed application for a section 97A CDPA order (this is the provision by which UK transposed Article 8(3) of Directive 2001/29 into its own legal order) is not prohibitive: it appears to be around £14,000 per website, excluding subsequent monitoring costs.

In addition Arnold J also held the view that the risk of overblocking (yet another argument advanced against the availability of blocking orders), as well as related reputational damage for the concerned ISPs, would not be significant.

Overall it is fair to assume that the Telekabel and Cartier decisions will orientate future IP and copyright enforcement policy debate to a significant extent, both in Europe and elsewhere.

At the EU level how to ameliorate online enforcement has been discussed for a while now (at least since the 2011 Commission's blueprint on IP rights), although no actual reform initiatives – whether relating to Directive 2004/48 or Directive 2001/29 – have yet been placed on the table.

Outside the EU, following the introduction in 2014 of provisions allowing rightholders in Singapore to apply for blocking orders, 2015 will likely be another big enforcement policy year in the Asia-Pacific region, notably Australia. As a follow-up to the 2014 public consultation on Online Copyright Infringement, among other things Government recently announced its intention to amend the Copyright Act to allow rightholders to apply for a court order that would require ISPs to block access to websites operated outside of Australia.

Blocking orders may be brought back into discussion even in the US, despite the blackout that followed the public stir caused by unsuccessful SOPA/PIPA initiatives. This might be the case if the lobbying efforts of content owners in the US, as revealed by the recent Sony hack, succeeded.

Overall, the international policy debate in 2015 around online IP enforcement and availability of blocking injunctions, whether to block websites hosting infringing content or selling counterfeits, will necessarily include an assessment of the European experience. Such experience is only the one of courts – whether the CJEU or national, notably UK, courts – though. At the EU level in particular, the actual input of actual policymakers (read: the EU Commission or Parliament) has been scarce over the past 3–4 years. With a new Commission now in place, in 2015 it will be also interesting to see if a real EU agenda for online enforcement of IP rights is also proposed and developed outside the courts, ie at the policy and legislative levels.