Site-blocking flood gates may open after High Court ruling

the High Court at the end of July granted a ground-breaking injunction in favour of the major film studios against BT, the UK’s largest internet service provider (ISP).

The court held that BT would need to block access to filesharing website Newzbin2 by UK internet users.

The exact measures to be employed by BT to block or impede access to Newzbin2 are to be set out when the parties return to court in October.

The film studios have, however, proposed that BT makes use of the same blocking technology (known as Cleanfeed) it currently employs to block access to child pornography content on its network.

Based on their reaction following the judgment, the film studios clearly saw this as a test case and will probably now apply for similar measures against other UK ISPs. But the effectiveness of the judgment raises some concerns.

Anonymous members of the Newzbin2 site have threatened to bring down any blocking methods used by BT, which invariably would include those blocking child pornography.

It is also questionable whether it is reasonable to expect ISPs to adapt their systems to inspect internet traffic for copyright infringement.

Clearly, the damage or exploitation inherent in the availability of harmful content should not be equated with the financial loss suffered by illegally sharing someone’s commercial property.

The ultimate effect of the judgment is that ISPs will be expected to treat in a very similar way both types of internet traffic. Whether the blocking itself is likely to reduce the amount of illicit filesharing in the UK is also unclear.

The High Court was of the view that evidence in a similar Italian case (in relation to the Pirate Bay site) showed that these types of technological measures greatly reduce access to infringing sites.

Following the same case, bloggers were however reporting that traffic to the Pirate Bay website had in fact increased as a result of the media coverage of the case.

It is also not clear whether these technological measures simply shift usage from the blocked website to another offering similar content.

Circumvention will also remain an issue. The court glossed over these elements, stating that circumvention of blocking technology requires “additional expertise beyond that [which most users] presently possess”.

The current operators of Newzbin2 have already stated that they will assist users to circumvent restrictions for accessing their website.

The measures granted under the order are also very much specific to the facts relating to the Newzbin2 site.

The current Newzbin2 website is hosted in Sweden, and it is not clear who the operators of the website are.

A similar UK website closed down in 2010 (Newzbin 1) following a finding that it had been infringing copyright. It also operated on the basis that members of the website paid 30p per week to download files sourced using the site. It had around 700,000 members.

Clearly, the harm in the Newzbin cases is relatively clear, and any requests for orders against ISPs would arguably need to show the same levels of infringement to be successful.

The judgment has also had the strange effect that certain provisions of the much-maligned Digital Economy Act (primarily intended to deal with illegal filesharing within the UK) are now to be scrapped. Business secretary Vince Cable was reported last week as stating that the blocking provisions in the Digital Economy Act are too cumbersome and are unworkable.

Whatever the potential flaws in implementing the judgment, this approach to dealing with infringing websites has been sanctioned by the High Court and we are likely to see similar actions being brought against other ISPs.

Undoubtedly there will be costs that ISPs will have to incur if they are to block websites subject to these types of orders, and ultimately ISPs are likely to pass on those costs to their customers.

l Marlon Cohen is an associate (IT & IP) with Dundas & Wilson LLP