On 28 July 2011 in the case of Twentieth Century Fox Film Corporation and Anor v British Telecom [2011] EWHC 1981 (CH), and for the first time in UK history, the High Court granted an injunction against an Internet Service Provider (ISP).
BT was ordered by the High Court to block access to an unlawful
file sharing site called www.newzbin.com. The action could not be
brought against the offenders as they were, now, based outside of
the UK Court's jurisdiction.
Newzbin Limited (a UK company) had previously been found liable for
copyright infringement in 2010 (Twentieth Century Fox Film
Corporation & Anor v Newzbin Ltd). Following this determination
the company had gone into liquidation. In the 2011 action the Court
heard that a successor website, providing similar services, had
been set up and was operating from the same address.
Newzbin used "Usenet", a system originally designed to
allow users to read and post short messages. Usenet enabled
Newzbin's users to post binary content onto public bulletin
boards. This binary content often included CD's and DVD
films. Often this content was too large to post in one go so users
would post hundreds of Usenet messages, Newzbin then categorised
these for its users and placed them under headings such as
"Movies". Users could search by these headings in order
to download complete films and CD's.
The Claimants knew that BT used specialist technology called
"Cleanfeed" in order to block pornographic content so
sought an order which asked that BT apply this software to prevent
its customers from accessing www.newzbin.com.
When making its determination the Court relied on section 97A of
the Copyright Design and Patents Act (CDPA) 1988, this gives the
High Court power to grant an injunction against a party where there
has been infringement of intellectual property rights.
Section 97A provides a two stage test.
"The High Court...shall have power to grant an injunction
against a service provider, where that service provider has actual
knowledge of another person using their service to infringe
copyright".
The Court determined that both these tests were met - BT had
"actual knowledge" that its customers were infringing
copyright and that they were able to do this by using BT's
services.
This injunction against BT undoubtedly sets a precedent. Mr Justice
Arnold noted this in his judgment stating he did not believe that
this determination would necessarily lead to a flood of similar
applications as in this case there had been a substantial amount of
evidence against Newzbin, as well as the 2010 hearing.
On 26 October 2011 Mr Justice Arnold ordered BT to block its
estimated six million customers' access to www.newzbin.com
within fourteen days. Newzbin claim that the block was
ineffective and that over 90% of its active UK users have since
downloaded its workaround software.
On 13 December 2011, Sky blocked its customers' access to
Newzbin in accordance with a court order and it would seem that
other ISPs may be forced to take such action if served with a
similar court Order.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
