Intermediary Liability: to block or not to block? Ashley Hurst

Blocking injunctions

Hypothetical scenario The CEO of Next Big Thing plc gives a confidential presentation to senior executives outlining the company’s key innovations for the year ahead. The presentation is videoed and distributed by to a small number of senior executives that couldn’t attend the meeting. The video appears on YouTube and the source of the leak is unknown. YouTube takes the video down on request but it keeps reappearing both on YouTube and other websites, which are appearing high in the Google rankings. A blog then appears on Blogger.com (owned by Google) which continues to publish the video and defamatory allegations about the CEO. Again, the blog keeps reappearing every time it is taken down. You discover that the defamatory blogs and the original YouTube video originate from IP addresses registered in the Seychelles.

Injunctions? Can you obtain an injunction against: YouTube (as a website operator) and Blogger.com (a blogging platform) to block certain IP addresses from posting material; Broadband providers (e.g. BT, Virgin Media) to block access by its customers to certain URLs and IP addresses; and/or Google (as a search engine) to prevent certain URLs appearing in its search results? How does the position differ for defamation, copyright infringement and breach of confidence?

Defamation Key cases: You can’t normally obtain a libel injunction if the defendant intends to defend (Bonnard v Perryman [1891]) Exception for anonymous speech (Sunderland Housing Company v Baines [2006] EWHC 2359 (QB)) Hosting companies can be liable as publishers once on notice (Godfrey v Demon Internet Ltd [2001] QB 201) Broadband companies are not liable as publishers even on notice (Bunt v Tilley [2006] EWHC 407 (QB))

Defamation Google (as a search engine) is not liable for defamatory snippets or links in search results (Metropolitan International Schools Ltd v Designtechnica Corp & Google [2011] 1 WLR 1743) Google (as a platform provider) is not liable as a publisher, even on notice (Payam Tamiz v Google Inc. (1) and Google UK Limited (2) [2012] EWHC 449 (QB) – subject to appeal) But note Davison v Habeeb ([2011] EWHC 3031 QB)

Defamation Section 5 Defamation Bill (May 2012): (1) This section applies where an action for defamation is brought against the operator of a website in respect of a statement posted on the website. (2) It is a defence for the operator to show that it was not the operator who posted the statement on the website. (3) The defence is defeated if the claimant shows that— (a) it was not possible for the claimant to identify the person who posted the statement, (b) the claimant gave the operator a notice of complaint in relation to the statement, and (c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.

Defamation Section 5 Defamation Bill: (5) Regulations may— (a) make provision as to the action required to be taken by an operator of a website in response to a notice of complaint (which may in particular include action relating to the identity or contact details of the person who posted the statement and action relating to its removal);

Defamation Section 10 Defamation Bill: “(1) A court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher.”

Copyright infringement Article 11 Enforcement Directive 2004/48/EC: “…Member States shall also ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right, without prejudice to Article 8(3) of Directive 2001/29/EC.” Article 8(3) of Information Society Directive 2001/29: “Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.” Section 97A Copyright Designs & Patents Act 1988 (as amended): “The High Court…shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright.”

Copyright infringement Key cases: Injunctions against service providers under Article 11 of the Enforcement Directive can prevent both existing infringement and future infringement but must be “effective, proportionate and dissuasive” (L’Oreal v eBay (2011 ECJ Case C )) Blocking injunctions under s.97A CDPA: Twentieth Century Fox v BT [2011] EWHC 1981 (Ch) and [2011] EWHC 2714 (“Newzbin 2”) Dramatico Entertainment & Others v BSkyB & Others [2012] EWHC 268 (Ch) and [2012] EWHC 1152 (Ch) (“Pirate Bay”)

Breach of Confidence Key cases: Breach of confidence injunctions will not be granted where the information is “so generally accessible that, in all the circumstances, it cannot be regarded as confidential” (Attorney General v Observer Ltd [1990] 1 AC 109) Confidential information published on Wikileaks was not sufficiently in the public domain (Barclays Bank plc v Guardian News & Media ([2009] EWHC 591 (QB))

Breach of confidence

Hypothetical scenario Can you obtain an injunction against YouTube (as a website operator) and Blogger.com to block certain IP addresses from using the websites? Not yet for defamation as YouTube and Blogger.com would probably not be publishers (watch out for the Defamation Act) Possible injunction under s.97 CDPA and/or Article 11 of the Enforcement Directive if (a) YouTube/Blogger.com is properly notified and (b) the injunction is effective, proportionate and dissuasive Probably not based on breach of confidence as the material is in the public domain

Hypothetical scenario Can you obtain an injunction against Broadband providers (e.g. BT, Virgin Media) to block access by its customers to certain URLs and IP addresses? Not for defamation as broadband providers are not publishers at common law Possibly under s.97 CDPA and/or Article 11 of the Enforcement Directive if (a) the Broadband providers are properly notified and (b) the injunction is effective, proportionate and dissuasive Probably not based on breach of confidence as the material is in the public domain

Hypothetical scenario Can you obtain an injunction against Google (as a search engine) to prevent certain URLs appearing in its search results? Not for defamation as search engines are not generally publishers at common law Probably not under s.97 CDPA as it is not Google’s search engine that is being used to infringe copyright Possibly under Article 11 of the Enforcement Directive if (a) Google is properly notified and (b) the injunction is effective, proportionate and dissuasive Probably not based on breach of confidence as the material is in the public domain

Intermediary Liability: to block or not to block? For more information please contact: Ashley Hurst +44 (0)