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

The court may grant preventive orders against intermediaries whose facilities facilitate wrongdoing by others. The jurisdiction is not confined to disclosure orders or civil wrongs. It may extend to criminal wrongdoing where the applicant is sufficiently affected and is a victim of that wrongdoing.

A dynamic website-blocking order may therefore authorise an applicant to designate further websites by confidential criteria, provided the scheme is sound in principle and appropriate as a matter of discretion. Relevant considerations include regulatory support, the applicant’s competence and resources, likely effectiveness, limited interference with legitimate activity, and procedural safeguards.

The applicants, holders of UK marketing authorisations and relevant trade mark rights for medicinal products, sought to vary and extend an existing website-blocking order made against intermediary internet service providers. The proposed variation would add seven websites and introduce a dynamic mechanism allowing the applicants to designate further websites by self-certification against confidential criteria.

The criteria could identify websites involved in trade mark infringement, passing off, or breaches of the Human Medicines Regulations 2012. In some cases, no direct infringement of the applicants’ private rights would be involved. The central issue was whether the court could authorise such a mechanism, including where the applicants would identify regulatory and criminal wrongdoing affecting their broader interests.

1. Order granted. The court varied and extended the existing website-blocking order to add seven Target Websites and to permit the proposed dynamic blocking mechanism.
2. The jurisdiction to make orders against third parties whose facilities facilitate another’s wrongdoing is wide. It is not confined to orders requiring disclosure of information. It includes preventive orders directed at stopping the continuation of wrongdoing, as explained in Cartier International AG v British Telecommunications plc and anor [2018] UKSC 28.
3. The jurisdiction is not limited to civil wrongdoing. It may be exercised in relation to criminal wrongdoing where the applicant is a victim or is sufficiently affected by that wrongdoing. The principle in Ashworth Hospital Authority v MGN Limited [2002] UKHL 29, [2002] 1 WLR 2033, was capable of supporting the proposed order, notwithstanding that the order would go beyond the provision of information.
4. There was no objection in principle to a structure under which the applicants assessed whether confidential criteria identifying regulatory breaches were met and notified the ISPs to block the relevant websites. Those breaches would affect the applicants and would therefore provide a sufficient legal basis for preventive relief.
5. As a matter of discretion, the scheme was appropriate. The court relied on the limited success of the Medicines and Healthcare products Regulatory Agency’s enforcement efforts, the applicants’ resources and demonstrated monitoring capability, and the MHRA’s support for the scheme. The mechanism was likely to reduce access to illegal websites, while the risk of over-blocking legitimate commercial activity was negligible.
6. The order retained safeguards, including a sunset clause, notification where practicable, provision of the non-confidential order, and liberty to apply to vary or revoke a designation. A person showing a legitimate interest could seek access to the confidential criteria subject to appropriate confidentiality protections.
7. The court also accepted that injunctive relief could address future infringements of the same or an equivalent kind under the principles derived from L’Oreal SA v eBay International AG C-324/09, EU:C:2011:474, [2011] ECR I 0000, and Glawischnig-Piesczek v Facebook Ireland Ltd C-18/18, EU-C-2019:821.