Cartier International AG & Ors v British Sky Broadcasting Ltd & Ors

The court may order internet service providers to block access to websites whose operators or users use the providers’ services to infringe intellectual property rights. The jurisdiction is not confined to copyright or registered trade-mark infringement, or to infringement of the applicant’s own rights. Where IP-address blocking may affect other websites, the order should be targeted to balance effectiveness against collateral damage to lawful operators. It may permit blocking without a further court ruling where unlawful activity is obvious, provided affected operators receive notice and an opportunity to move servers or object. Any objection prevents blocking without determination by the court.

This was a further hearing following the court’s main judgment, [2014] EWHC 3354 (Ch), in proceedings by Cartier, Montblanc and Richemont against internet service providers. The court had decided to make website-blocking orders concerning target websites selling counterfeit goods. The remaining issues concerned the precise form of the order, particularly the treatment of other websites sharing IP addresses with target websites and the conditions for future notifications by the claimants.

1. Jurisdiction. The court had jurisdiction to require the defendants to block access to the target websites and should exercise it for the reasons given in the main judgment. The jurisdiction extended to cases where operators or users of an affected website used the defendants’ services to infringe any intellectual property right. It was not limited to copyright or registered trade marks, nor to infringement of the applicant’s own rights.
2. Meaning of unlawful activity. The proposed condition referring to websites engaged in unlawful activity was neither impermissibly vague nor too broad. Unlawful conduct could include activity such as child pornography, even though that conduct did not infringe an intellectual property right.
3. Protection of other website operators. It was permissible for the claimants initially to certify that a non-target website sharing an IP address was engaged in unlawful activity where the position was obvious and there was no real doubt. The proposal gave the operator an opportunity to move to another server or object. If an objection was made, the IP address could not be blocked without a determination by the court.
4. Balance and order. The proposal fairly balanced effective enforcement against collateral damage to lawful website operators. The court therefore acceded to it. A further optional safeguard was omitted because the defendants did not wish to use it.

The judgment records that the court had previously given its main judgment in [2014] EWHC 3354 (Ch). This hearing determined the remaining issues concerning the form of the consequential order.