Novo Nordisk A/S & Anor v British Telecommunications & Ors

The High Court may grant a website-blocking injunction under its inherent equitable jurisdiction where internet service providers facilitate civil or criminal wrongdoing, even though the applicant does not seek to enforce the relevant criminal provisions directly. The court must assess proportionality by considering necessity, effectiveness, deterrence, cost, legitimate trade, competing rights and safeguards. A cost-benefit analysis is required, including the risk of over-blocking. A claimant must identify a legitimate interest meriting protection, but no fixed standing criteria apply. The jurisdiction extends to new forms of online wrongdoing where established equitable principles justify relief.

Novo Nordisk sought an injunction requiring six internet service providers to block four websites offering counterfeit, unlicensed and prescription-only medicinal products to UK consumers. The application relied on trade mark infringement, passing off and breaches of the Human Medicine Regulations 2012. The respondents did not appear but did not oppose the application.

The central issues were whether the court had jurisdiction to grant the order, whether Novo Nordisk had sufficient standing or a protectable interest, and whether the proposed blocking order was proportionate.

1. Jurisdiction. The court had power under its inherent equitable jurisdiction to grant a website-blocking injunction against intermediaries whose services facilitated civil or criminal wrongdoing. The jurisdiction was not confined to trade mark or copyright infringement. It could extend to breaches of the Human Medicine Regulations 2012.
2. The threshold requirements were satisfied. The ISPs were service providers within regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002; their services had been used to infringe the NN Marks, commit passing off and contravene the 2012 Regulations; and they had actual knowledge of that use. The court accepted that consumers’ access to, and purchases from, the target websites constituted sufficient use of the ISPs’ services.
3. Standing. It was neither wise nor profitable to prescribe fixed criteria for standing in this context. The applicant had to show an interest meriting protection and a legal or equitable principle justifying relief. Novo Nordisk had the necessary standing, including in light of the support and encouragement of the MHRA.
4. Proportionality. The order was necessary to protect the public and intellectual property rights, likely to be effective, narrowly targeted and unlikely to cause over-blocking. The websites had no apparent legitimate commercial interest, other enforcement efforts had failed, and mirror or successor sites made a dynamic remedy appropriate. The order contained notification provisions, liberty to apply and a two-year sunset clause. Implementation costs were modest and proportionate and would be paid by Novo Nordisk.
5. The application was therefore granted and the website-blocking order made in the proposed terms.