UK ISP British Telecom has to block internet access to file sharing site Newzbin for all its users. Yesterday, the London High Court of Justice ruled that such a measure is proportionate and necessary to protect the intellectual property rights of multiple major film studios. In this particular case the movie studios right to protection of their intellectual property (art. 1 FP ECHR) offsets the right to freedom of expression (art. 10 ECHR) of British Telecom, the administrators of Newzbin, as well as those of the Newzbin’s users. An important factor for the judge to grant the blocking order, is that the measure is narrow and targeted, holds adequate safeguards and that the cost of implementation are modest and proportionate. 

The blocking order is based on article 8, paragraph 3, of the Information Society Directive, implemented in the UK under article 97A of the Copyright, Designs and Patents Act 1988. The Court finds that all conditions mentioned in the article are met in this case, including British Telecom having knowledge of the infringements on the studio’s copyright by and through Newzbin (par. 157) as had previously been established in lawsuit between the parties. 

British Telecom's objection that the order is disproportionate, as Newzbin contains more content than that of the studios involved in the lawsuit, the Court doesn’t agree with. The movie studios jointly represent the largest group of rights holders whose content is distributed through Newzbin. Other claimants are considered to be equally supportive of the application by the High Court, since Newzbin violates their copyrights as well (par. 185). 

The High Court also doesn’t share British Telecom’s concern that application of the blocking order will lead to a flood of requests to ISP’s to block other sites. For any such measure it would first have to be establish in a legal procedure that the disputed website is illegal, the judge explains, pointing out that the movie studios had previously gone to great extend to establish in court that Newzbin acts unlawful by facilitating large-scale copyright infringement on the studios copyrights (par. 189). 

In addition, the High Court did not share British Telecom’s believe that the order would lead to a general obligation to monitor, since the order is focused on the blocking of a specific website (par. 162). 

That users can bypass the blocking measure was no sufficient argument for High Court. It found the order justified, even if it would ultimately keep away only a small amount of users from Newzbin’s website (par. 198). 

The court correctly notes that there doesn’t seem to be any clarity on the application of blocking orders to ISPs under article 8, paragraph 3, of the Information Society Directive on a European level. For those interested in European case law on this specific subject, the Newzbin ruling contains a summary of the various European court cases on this subject and their outcomes (par. 96). 

In the Netherlands a similar blocking order is sought in the case between Dutch anti-piracy organization BREIN and the Netherlands largest ISP Ziggo. In summary proceedings the Court of The Hague rejected BREIN’s request to a blocking order for The Pirate Bay. According to the Court, such a measure would be disproportionate, as BREIN would have the opportunity to sue individual infringers Ziggo users. BREIN has appealed the summary judgement. In light of the verdict of the British High Court in the Newzbin case as well as higher case law from other European countries, it is interesting to hear what the Higher Court of the Hague’s verdict will be in this case. To be continued ... 

For more information on blocking orders to ISPs see previous posts on FutureOfCopyright:

• UPC Austria needs to make unlawful site unavailable to clients
• Finland demands ISP to block access to The Pirate Bay
• Italian ISP blocking of Pirate Bay leads to significantly fewer visitors
• MPA demands UK ISP to block access to Newzbin
• Court of The Hague: FTD did not violate copyright, but stimulated uploading of protected files