Young Turks Recordings Ltd & Ors v British Telecommunications Plc & Ors

Website-blocking orders may be granted where internet service providers are used to infringe copyright and have actual knowledge of the infringement. The court must be satisfied that the order is necessary, effective, dissuasive, proportionate and properly safeguarded against abuse. Operators of services which provide or facilitate stream ripping may authorise users’ copying and may be jointly liable where they induce, procure or participate in a common design to infringe. Supplying software can constitute an active intervention amounting to communication to the public, even where the supplier does not itself transmit the works. Communication is directed to the UK where the service, language, usage and commercial arrangements demonstrate UK targeting.

Record companies sought orders under section 97A of the Copyright, Designs and Patents Act 1988 requiring six internet service providers to block access to websites and software used for stream ripping. The defendants accepted the form of the order and did not oppose it in principle.

The court considered whether the defendants were service providers and intermediaries, whether users and operators infringed copyright, whether the operators authorised or jointly committed those infringements, whether there had been communication to the public, and whether the proposed order was proportionate.

1. Disposition. The court granted the requested blocking order. The defendants were service providers for the purposes of section 97A and intermediaries for the purposes of Article 11 of the Enforcement Directive. They had actual knowledge of the relevant matters through the evidence served on them.
2. Infringement by users and operators. Users copied protected recordings without licences. There was no defence of personal use. The operators authorised infringement because the services were designed to provide permanent unlicensed downloads, infringement was effectively inevitable, the operators retained control, and their purported safeguards and takedown facilities were inadequate ([2021] EWHC 410 (Ch), paras 48–65).
3. The operators were also joint tortfeasors. They induced, incited or procured users to infringe and acted with users pursuant to a common design, while profiting from the activity ([2021] EWHC 410 (Ch), paras 68–71).
4. Communication to the public. The relevant questions were whether there was electronic transmission, whether the works were communicated to the public, and whether the communication took place in or was targeted at the UK. The conversion sites intervened to give users access to protected works. The Downloader App also constituted an intervention, although it did not itself transmit content, because it deliberately facilitated access to protected works. Making streamed works available as downloads used a new technical means or reached a new public ([2021] EWHC 410 (Ch), paras 72–80).
5. The services targeted the UK through their English-language presentation, substantial UK usage, worldwide targeting, UK pricing and UK payment facilities ([2021] EWHC 410 (Ch), para 81).
6. Proportionality. The order was necessary because of substantial infringement and the absence of realistic less onerous measures. It was effective, dissuasive, technically practicable, and did not interfere materially with legitimate trade or users’ rights. The order contained appropriate safeguards, including permission for affected persons to apply ([2021] EWHC 410 (Ch), paras 89–102).