Part 2 – the UK Situation
There have been proposals in the UK, primarily from the media industry, to block websites that host unlawful content. Website blocking was proposed as a means to implement the provisions of the reviled Digital Economy Act, 2010. However, following a series of consultations and submissions from ISPs, copyright owners, consumers and civil society groups, the Government appointed agency, Ofcom, came to the conclusion that website blocking, while effective, was a measure that could not be resorted to, owing to the ease with which it can be circumvented.
The Motion Pictures Association of America (“the MPAA”) approached te UK courts to seek blocking, by ISPs, of a Usenet website (discussed below) that facilitates access to material that infringes their copyright. The key difference between this case and the John Doe orders is the manner in which the blocking order was sought and obtained.
Newzbin2: An action was brought by members of the Motion Picture Association of America (“MPAA”) against British Telecom (BT), UK’s largest ISP, Twentieth Century Fox Film Corporation and Others v British Telecommunications Plc,  EWHC 1981 (Ch), commonly referred to as the Newzbin2 case.
Prior to this case, the studios had also brought another case against Newzbin. In Twentieth Century Fox Film Corporation and Others v Newzbin Ltd.  EWHC 608 (Ch), Mr Justice Kitchin had ruled that Newzbin had infringed the MPAA’s copyrights in some of their films. He ordered Newzbin to ensure that its users did not infringe the copyright of the plaintiffs in the works identified by the plaintiffs in lists provided to Newzbin. Shortly after this injunction, Newzbin went into voluntary liquidation and the website, hosted in the UK, disappeared. It later re-appeared as Newzbin2, hosted on Swedish servers. This re-appearance led to the studios asking BT to block the new website or not oppose an application to block it under section 97A. BT refused both requests.
The application for an injunction to block access to Newzbin2 was made by the MPAA under section 97A of the UK Copyright, Designs and Patents Act 1988 (“CDPA 1988”) which provides that a High Court has the 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.” For actual knowledge to be shown, the service provider should have received a notice with the details of the infringement in question.
Mr Justice Arnold, in his judgment, said that,
“In my judgment it follows that BT has actual knowledge of other persons using its service to infringe copyright: it knows that the users and operators of Newzbin2 infringe copyright on a large scale, and in particular infringe the copyrights of the studios in large numbers of their films and television programmes,…”
Even though BT successfully proved that 30% of the material on the Newzbin2 website was not content owned by the plaintiffs, it was held that the studios’ rights were being infringed on a “massive scale” and even though the order would benefit other rightsholders in addition to the studios, it was not a reason to refuse making the order but in fact was a reason to support it.
The most interesting part of this case, for the present analysis, was when BT raised a concern that if the Court used its discretion and granted the plaintiffs’ application, it would lead to a flood of applications by rightsholders for the blocking of other websites as well. Mr Justice Arnold accepted that it is likely that orders would be sought by rightsholders to prevent access to other websites and would therefore lead to them demanding the blocking of more websites by ISPs. He held that,
“It should be borne in mind, however, that in this case the Studios started from the point that they had already obtained judgment against Newzbin Ltd. Even so, the Studios have had to obtain and put before the Court a substantial quantity of evidence in support of the present application. In addition, the application involved the preparation by counsel for the Studios of a lengthy and detailed skeleton argument, a two-day hearing and written submissions following the hearing. Thus this will have been a costly application for the Studios to bring. I recognise, of course, that some of this effort and expenditure is attributable to the present application being a test case, and that subsequent applications ought to require less effort and less expenditure, but on the other hand subsequent applicants will have to prove things that the Studios had already established in 20C Fox v Newzbin.”
Despite the precedent set by Newzbin2 in providing excessive powers to copyright owners to seek blocking, it has at least acknowledged that copyright owners cannot just walk into court seeking an injunction to have an ISP block a website and have it granted overnight – unlike a John Doe order – and that rightholders need to argue on the basis of copyright law to prove infringement, including the presentation of adequate evidence.
In Newzbin2, July 2011, Mr Justice Arnold had delayed deciding the exact form of the order and was supposed to decide later what exactly BT would need to do. This order was passed on 26 October 2011. One of the key defects in the order is that BT is not required to carry out deep packet inspection (DPI), except to the extent that its existing filtering system, CleanFeed (aimed at filtering child pornography) already does. The studios will provide BT with a list of IP addresses and URLs which includes Newzbin2 and “any other IP address or URL whose sole or predominant purpose is to enable or facilitate access to the Newzbin2 website”. There seems to be a terrific amount of faith being placed in the studios to act fairly. The order does not mention any penalties on the studios for blocking websites wrongly and website owners and operators do not need to be informed that they might be on BT’s blacklist.
Following from the Newzbin2 injunction, the MPAA has also managed to get a court order against Sky, another major UK ISP, to block access to Newzbin2, which Sky has done.
My next and final post in this series will look at the UK civil society movement’s battle against website blocking and conclude this comparative discussion.