Open Rights Group’s (ORG) intervention had a significant impact on a landmark case about internet trade mark infringement that was handed down today by the High Court in London.
Although the court held that it had jurisdiction to order injunctions directly against intermediary Internet Service Providers (ISPs) so that websites selling counterfeit goods can be blocked to subscribers, Mr Justice Arnold adopted the key ORG submission that such orders should always contain safeguards against abuse. He also adopted ORG’s proposal for such safeguards.
In particular the judge:
accepted ORG’s submission that the orders should be required to have safeguards against abuse, and that this was a requirement which had been missed by the other parties (para. 191);
adopted ORG’s concrete proposals about the information to be included on landing pages and “sunset clauses” as safeguards against abuse (paras. 262 to 265); and
thanked ORG for its “brief, moderate and helpful” written submissions, which were “sensibly” not opposed by the other parties (para. 7).
ORG’s Legal Director Elizabeth Knight said:
“Whilst we are disappointed that the Court decided it had jurisdiction to grant these blocking orders, we are very pleased that that the judge took account of ORG’s intervention and recognised our concerns by ensuring that safeguards against abuse were included in the judgment, including landing page information and sunset clauses.”
David Allen Green, lawyer at Preiskel & Co LLP, who acted for ORG pro bono said: “ORG is not on the side of counterfeiters. But innocent internet users can end up being affected by these orders. The court should be mindful of how these orders can impact on third parties. Had it not been for ORG’s submission, various points may well not have been included in today’s judgment. We are grateful to the High Court for allowing our intervention and in particular, recognising that the test to be applied by the court includes the requirement of there being safeguards against abuse. We hope that this intervention will go some way to help ensure that future claimants cannot use blocking orders to restrict legitimate activity or free speech.”
In his judgment, Mr Justice Arnold ruled that BSkyB, BT, EE, TalkTalk and VirginMedia should block a number of websites that have been using the trade marks of Cartier International and related companies for counterfeiting activity. ORG is campaigning for more transparency around websites blocked for legal reasons through its Error 451 project. ORG is calling for ISPs to show an error 451 message when material has been blocked by a court order and to provide more information to the public.
The case was heard by Mr Justice Arnold at the High Court of Justice, Chancery Division. ORG's submissions were written by David Allen Green with the assistance of Elizabeth Knight and Greg Callus.
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