|Typical moment outside |
the Rolls Building last Friday
Why everybody was waiting for this judgment?
|Be honest: wouldn't you rather |
prefer finding a blocking order
inside the little red box?
|Freezing? Not really disruptive|
In light of the reasons given for stating that there are no real general alternatives to blocking orders, the judge also did "not accept that it is incumbent on [the rightholder] to show that the blocking measures would lead to a reduction in the overall level of infringement." [para 281]
But are blocking orders effective?
|Website blocking works fine on Gregory|
Contrary to a Dutch study extensively criticised by Arnold J [see paras 229 ff], "in the section 97A context [that was the only available context until last week], blocking of targeted websites has proved reasonably effective in reducing use of those websites in the UK [but not worldwide: see para 228]. No doubt it is the casual, inexperienced or lazy users who stop visiting those websites, whereas the experienced and determined users circumvent the blocking measures; but that does not mean that it is not a worthwhile outcome." [para 236]
|Ever thought of filtering?|
Similarly to what stated in his earlier judgment in 20C Fox v BT (No 2), Arnold J took the view that "the rightholders should pay the costs of an unopposed application ... [and] the ISPs should generally bear the costs of implementation as part of the costs of carrying on business in this sector". However the judge did "not rule out the possibility of ordering the rightholder to pay some or all of the implementation costs in an appropriate case." [para 240]
A very interesting part of the judgment is paragraph 250 and following. Given ISPs' objection that future implementation costs are likely to increase if a substantial number of orders are granted, Arnold J noted that neither the claimants nor the defendants had addressed the economic dimension of this problem.
Although the Ecommerce Directive prohibits imposing a general obligation to monitor on ISPs, according to the judge "it is economically more efficient to require intermediaries to take action to prevent infringement occurring via their services than is to require rightholders to take action directly against infringers." [para 251] Is this something for ISPs to think about?
It will be intriguing to see how the final part of the judgment will be applied and developed in future orders.
In particular, in line with what the CJEU ruled in Telekabel [here], at paragraph 263 Arnold J stated that "in future orders should expressly permit affected subscribers to apply to the [High] Court to discharge or vary the order." [para 264]
And finally: how long should blocking orders last? Not indefinitely: a "sunset clause" should be incorporated. In the present case it is yet to be decided, but last Friday Arnold J's view was that "it should be two years." [para 265]