June 14, 2018

The cost of Cartier's website-blocking orders

After a 4-year legal battle, the UK Supreme Court has just decided that internet service providers (ISP) implementing a website-blocking injunction should not have to bear the costs of doing so. Instead it found that the rights-holder (Cartier, in this case) should bear the ISP's reasonable costs. It held:

"The position in relation to website-blocking orders is no different in principle from the established position in domestic law in the case of Norwich Pharmacal orders, freezing orders and other injunctions granted to require an innocent party to assist the claimant in the assertion of its rights against a wrongdoer."

How is this relevant to New Zealand? Last year Sky threatened to file a similar application seeking website-blocking orders against New Zealand's major ISPs, to prevent their customers accessing web-addresses hosting infringing content. However, unlike the UK and Australia, where these types of blocking orders are now common, New Zealand has not amended its copyright legislation to allow this type of order to be made. Whether Sky would have been successful is not clear.

New Zealand is currently reviewing its Copyright Act and blocking orders will, undoubtedly, be considered during the review. It is also likely the Copyright Act will ultimately include a provision similar to section 97A of the UK's Copyright, Designs and Patents Act 1988, which enabled Cartier to obtain website-blocking orders back in 2014.

Allocation of cost of implementing the site-blocking orders should be part of that consideration, to avoid a long and expensive dispute of this kind happening here.


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