WILMap: United Kingdom

LEGISLATION

 
[Section 56 of this Act repeals sections 17 and 18 of the Digital Economy Act 2010 (which warranted the introduction of specific website blocking injunctions, see below)].
 
 
[Section 69(1) of the Act provides that “it is an offence to be in possession of any item that contains advice or guidance about abusing children sexually.” Schedule 3 of the same legislative instrument specifies that this offence is to cover the domestic providers of information society services; unless they fall within one of the safe harbours reflecting the E-Commerce Directive 2000/31 (mere conduit, caching, hosting). Non-domestic providers can also be charged, but only if a specific public policy requires it.]
 
Regulations 2013/3028, Defamation (Operators of Websites)
 
[These regulations are supplementary to section 5 of the Defamation Act 2013 (see below). Among others, they specify the characteristics of a valid notice of infringement, as well as require the website operators wishing to rely on the section 5 defence to respond to such a notice (by eg. removing the content complained of or by contacting its poster) within 48 hours (see Schedule 1 of the Regulations). That said, reg. 5 provides that the courts have the discretion to extend this period.]
 
 
[Section 5 of the Act sets out a new defence from liability in defamation, for the benefit of website operators. By virtue of this provision, such intermediaries are exempt from liability for defamatory statements uploaded onto their websites by the websites’ users. However, this defence can be overcome if the claimant proves: that it was not possible for the claimant to identify the person who posted the statement, that the claimant gave the operator a notice of complaint in relation to the statement, and that the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations which are to be established under section 5(5) of the Act (see above).]
 
 
[The DEA 2010 introduced two key procedures aimed at reducing online piracy through the “graduated response” approach – procedures labelled as the “initial obligations” and the “obligations to limit Internet access”.
 
(1) The first procedure starts with a copyright owner accessing one of the P2P filesharing networks, and attempting to find and download a file to which he owns the copyright. Once he succeeds, he is supposed to record the IP address of the user who made the copyrighted file available, and send it to this user's ISP in the form of a Copyright Infringement Report (CIR). By virtue of s. 3 of the Act, the ISP is then required to forward this CIR to the allegedly infringing user. Should a user receive more than three CIRs, each of them separated from another by a specific period of time, he is to be put on this ISP's “copyright infringement list”. By virtue of s. 4, the copyright owner may demand the ISP to provide him with an anonymous list of all users who reached the threshold by infringing his copyright. Upon receiving the list, the copyright owner may then apply for a court injunction to identify the infringing users and commence infringement proceedings against them.
 
(2) The second procedure, known as the “obligations to limit Internet access”, is to be implemented only if the Secretary of State decides that the initial obligations regime does not perform sufficiently well in reducing online piracy, after at least a year of operation. This second procedure would impose an obligation on the ISPs to act upon the Internet connection of its subscribers who reached the threshold of CIRs or went above it. This could potentially include measures such as limiting the speed of the connection, preventing the subscriber from accessing certain online services, and (in the ultimate case) suspending the subscriber's connection altogether. However, none of the two procedures has actually been implemented.
 
(3) The initial obligations code, governing the operational aspects of the discussed procedures, has not appeared yet. Moreover, after a series of setbacks, the UK government announced that the initial obligations regime is to be activated in the second half of 2015.
 
(4) In addition to the “graduated response” procedures, section 17 of the DEA 2010 provides that the Secretary of State may introduce regulations explicitly providing the courts with an option of granting a blocking injunction against a “location on the internet” (most commonly, a website) which the court sees as “(…) being, or (…) likely to be used for or in connection with an activity that infringes copyright.” The online service provider who received the blocking injunction would have to “prevent its service being used to gain access” such a location. However, such regulations haven’t been established yet, and section 17 itself is potentially a subject to removal within the Draft Deregulation Bill 2013, clause 26 of which proposes omitting sections 17 and 18 of the DEA 2010.]
 
 
[The E-Commerce Regulations implement the E-Commerce Directive into the UK law, with the three liability “safe harbours” being transplanted through regs. 17, 18 and 19 of the Regulations in an almost mirrored manner. A potentially noteworthy difference in the language of those sections is that while the Directive uses the expression “should not be liable” (in relation to intermediaries), the Regulations expand this phrase into protection from liability “for damages or for any other pecuniary remedy or for any criminal sanction”, so that various forms of injunctive relief are excluded from the implemented provision.]
 
 
[Section 1 of the Defamation Act sets out a defence against liability in defamation, on which online intermediaries might try to rely on. Section 1 states that a defendant in defamation proceedings is protected from liability, provided that “he was not the author, editor or publisher of the statement complained of, he took reasonable care in relation to its publication, and he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.” It’s worth to add that the term publisher is further defined in section 1(2) as “a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business.”]
 
 
[This piece of legislation implements the Council Directive 89/104/EEC, and in doing so, sets out in section 10 what counts as trademark infringement within the UK law. This provision might affect intermediaries such as online auction and shopping websites.]
 
 
[The sizeable CDPA 1988 contains quite a few provisions related to intermediary liability. First of all, Sections 16 to 26 set out the definitions of various copyright infringing acts – those which might be of particular interest to online intermediaries are for example section 16(2) (dealing with the concept of authorisation of infringement) or section 20 (covering communication to the public). Secondly, Section 97A provides the basis for injunctions against providers of information society services. Finally, Section 107 covers the types of copyright-infringing conduct leading to criminal liability, quite a few of which could be potentially applied to online intermediaries.]
 

Self-Regulation

Creative Content UK, July 19, 2014
 
[A programme based on the “notice & notice” variant of the graduated response approach. UK ISPs have agreed to send educational notices to P2P filesharers who are found by the copyright holders to share the latters’ content online.] [See also UK Gov Press Release]

BILLS AND LEGISLATIVE PROPOSALS

 
[Passed into law with the Deregulation Act 2015].

DECISIONS

Superior Courts

[copyright, liability, tape recorder, freedom of expression]
 
[The decision in CBS v Amstrad is a leading authority on joint tort liability and authorisation liability of intermediaries facilitating the copyright-infringing actions of their users. In this case, a manufacturer and seller of hi-fi equipment (which allowed its users to copy music from one tape to another) was found to be not liable for its customers’ infringing use of said equipment. While this case comes from the “analogue era”, it continues to influence the decisions concerning online intermediaries; for example, it was the key authority considered in the first Newzbin case (see below).]
 

Lower Courts

[trademark, hosting provider, access provider, ISPs, infringement, blocking order]
 
[A blocking injunction was awarded against several further websites which facilitated the trade in goods infringing the claimant’s trademark; the criteria set out in the first Cartier case were successfully applied. It is worth to note that the possibility of the blocked IP address being shared with a website devoid of illicit activities (a matter which arose in the [2014] EWHC 3765 Cartier decision, see below) received the court’s attention – in such a scenario, the blockade may be limited to the targeted website’s domain name.]
 
Mosley v Google [2015] EWHC 59 (QB) 
[privacy, indexing service, filtering, safe harbours]
 
[The claimant brought a claim against Google under art. 10 of the Data Protection Act 1998 in order to oblige the search engine to disable access to pictures infringing on the former’s privacy. Google sought to strike out the claim, on the basis that the order applied for would be incompatible with arts. 13 and 15 of the E-Commerce Directive. The court, after noting that Google is able to block access to individual child pornography images, allowed the claim to go to trial.]
 
Google Inc v Vidal-Hall [2015] EWCA Civ 311 
[privacy, indexing service, tracking cookies, jurisdiction]
 
[Google was found to be using tracking cookies in order to secretly obtain data about its users’ online activity. A group of the latter sought to obtain corresponding damages for distress suffered, on the basis of s. 13 of the Data Protection Act 1998. At first instance, the claimants have been granted the permission for the trial to be conducted in England. On appeal, after stating that misuse of private information is a valid tort for the purpose of serving out of jurisdiction and that the claim could be for non-pecuniary loss, the court upheld the lower instance judgement.]
 
[copyright, torrent site, streaming, blocking order, ISPs]
 
[The claimants applied for a “Newzbin 2” blocking order against websites which made available and facilitated the use of the so called Popcorn Time applications (used for BitTorrent-based, illegal streaming of copyrighted content). The order was granted, with the websites’ owners found jointly liable for the infringements and the Popcorn Time application being characterised as having no legitimate purpose.]
 
1967 v B Sky B [2014] EWHC 3444 (Ch)
[copyright, torrent site, blocking order, ISPs, liability
 
[Another “Newzbin 2” injunction case – an application was granted against 21 torrent websites. It is worth to add that the CJEU case C-466/12 Svensson, and its impact on the notion of communication to the public were distinguished; however, it was stated that the European court’s decision did not change the legal steps required to obtain the “Newzbin 2” injunctions in the UK.]
 
Clark v TripAdvisor LLC [2014] CSIH 110
[defamation, online reviews, disclosure of users’ data, jurisdiction]
 
[A Scottish case, in which the claiming guest house owners were refused a court order which would oblige TripAdvisor - a US-based company – to disclose the personal data of users who wrote allegedly defamatory reviews about the claimant’s establishment. The base of the refusal was that the Scottish Administration of Justice (Scotland) Act 1972 did not cover the identification requests aimed at entities located outside of the country.]
 
[copyright, pictures, jurisdiction]
 
[An owner of a website advertising escort services in South Africa found out that the UK copyright-protected pictures from his website were placed on his competitor’s website. The latter party was found to have infringed the copyright in pictures, as it was held that his website was targeted at the UK audience. The factors leading to this finding included the website’s language (English), the traffic data (10% to 25% visitors came from UK) and the website’s structure (composed of national sub-domains, connected to each other). The works were found to be communicated to the UK public.]
 
[trademark, infringement, blocking order, ISPs]
 
[A case following the initial Cartier decision. It was found that the IP address-based blockade of websites targeted in the initial court order may disable access to other websites using the same IP address.  The claimants submitted that this is appropriate for situations where those other websites are also involved in “unlawful activities”, and that it is appropriate to automatically block them together with the initial site; but only if the former are “certified as engaging in unlawful activity”. The ISPs attempted to challenge such an extended blocking order on the grounds that: the court had no jurisdiction, that the term “unlawful activity” was too broad and unclear, that it’s not appropriate for the IP rightsholders to decide on which websites should be seen as sufficiently “unlawful”, and that it is inconsistent to ask for the proof of the initial website’s unlawful character in court, and not do the same for the other websites on the same IP address. All four lines of inquiry were dismissed and the extended blocking order was held to be valid.]
 
[trademark, infringement, blocking order, ISPs]
 
[A UK court issued a blocking order in  a case involving an attempt to combat trademark infringement rather than copyright infringement. The Court noted that there is no statutory counterpart in the field of trademarks to Sections 97A of the UK Copyright Act. However, the Court granted the injunction construing the Court's general jurisdiction to issue injunctions in the context of Article 11 of the Enforcement Directive. The following criteria were identified for the grant of such an injunction – (1) the ISP receiving the order has to be an intermediary, (2) trademark infringement had to occur on the targeted website (3) the targeted website had to rely on the ISP’s service, (4) the ISP must have  had the actual knowledge of the infringements in question. This was the first instance in Europe that a court ordered access providers to block access to a website for trademark infringement.] [See also CIS blog}
 
[copyright, streaming, blocking order, ISPs]
 
[A successful application for a “Newzbin 2” blocking injunction against two streaming websites (SolarMovie and TubePlus), which were found to facilitate copyright-infringing activities.]
 
[copyright, torrent site, blocking order, ISPs]
 
[A successful application for a “Newzbin 2” blocking injunction aimed at three torrent websites (KickassTorrents, H33t and Fenopy) and made against six largest ISPs in the UK.]
 
Tamiz v Google Inc [2013] EWCA Civ 68
[defamation, blog, blog comments, liability, defence]
 
[The claimant in those proceedings complained about the defamatory comments posted on a blog hosted on Blogger.com, a website operated by Google. It was held that once Google is notified of the defamatory comments on Blogger and fails to remove them within a reasonable time, it might incur liability as the “secondary” publisher of said content. Regarding the defence set out in s. 1 of the Defamation Act 1996 (see above), it was held that Google could not be regarded as the publisher of the comments within the meaning of s. 1(2), and while the company was found to have taken reasonable care with regards to the publication of the statement, it could be denied the defence due to the finding that it knew or should have known that its activity is likely to prolong the publication of the defamatory material. However, the s. 1 defence was not applied in the end, since the Court of Appeal agreed with the court of the first instance that the damage caused by the defamatory comments at hand was of trivial character, and could not result in the finding of a real and substantial tort. Hence, the case was struck out.]
 
[copyright, streaming, sport events, blocking order, ISPs]
 
[A successful application for a “Newzbin 2” blocking injunction against a football streaming website known as FirstRow Sports, which was found to facilitate copyright-infringing activities.] [See also]
 
[copyright, torrent site, blocking order, ISPs]
 
[A successful application made against six largest ISPs in the UK for a “Newzbin 2” blocking injunction (see below) aimed at The Pirate Bay.]
 
[copyright, torrent site, liability]
 
[Both users and operators of The Pirate Bay were found to be engaging in activities infringing the claimants’ copyrights. A preliminary case to the (No. 2) described above.]
 
Davison v Habeeb and others [2011] EWHC 3031 (QB)
[defamation, blog, liability, hosting exemption]
 
[This case concerned a defamatory blog post which appeared on Blogger.com, a website operated by Google. The claimant sought to make Google liable as a publisher of the defamatory statement. Despite the case having been ultimately dismissed due to there being no “real and substantial tort” (only five people were proven to have accessed the defamatory statement), the court found that - at least following the notification - Google can be liable for the defamatory statements posted on Blogger, as a publisher. It’s also worth to add that the court decided that Google could be protected in this case by the “hosting” safe harbour set out in reg. 19 of the E-Commerce Regulations 2002 (see above).]
 
[copyright, Usenet, indexing service, blocking order, ISPs]
 
[The “Newzbin 2” case. Shortly after the decision in Twentieth Century Fox Film Corp v Newzbin Ltd [2010] (described below), the Usenet indexing service was reactivated as Newzbin2. Upon noticing the reinstatement of the convicted website, Fox and other copyright owners successfully applied for a blocking injunction against Newzbin2, based on section 97A of the CDPA 1988 (see above). The requested injunction was aimed at forcing BT (the largest ISP in UK) to prevent its subscribers from accessing the Newzbin2 website.]
 
ITV Broadcasting Ltd v TV Catchup Ltd [2011] EWHC 1874 (Pat) 
[copyright, streaming, television programs, communication to the public, liability
 
[The defendant operated a website based on free, unauthorised live streaming of television programmes; including those protected by the claimant’s copyright. It was provisionally decided that the defendant’s service did infringe upon the right of communication to the public and the right to reproduction; however the court decided to refer a series of questions to the CJEU, which were covered in the case C-607/11 ITV Broadcasting Ltd v TV Catchup Ltd. The CJEU is currently considering a further reference made in the same proceedings.]
 
[copyright, Usenet, indexing service, liability]
 
[Known as the “Newzbin 1” case. The operators of a Usenet indexing website (which was found to have been used for the illegal exchange of copyrighted movies) were found to be liable for the infringing activities of their users, on the basis of joint tort liability, authorisation liability and communication to the public.]
 
Kaschke v Gray [2010] EWHC 690 (QB)
[defamation, blog, blog comments, liability, hosting exemption]
 
[The case revolved around the liability of a blog owner for the defamatory comment posted on his website. It was held that checking the spelling and grammar of such user-generated content triggers the finding of facts and circumstances from which the existence of infringing content should have been inferred; preventing the blog owner from relying on the “hosting” safe harbour of the E-Commerce Regulations 2002 (see above)].
 
R. v Allan Ellis T20087573 (2010) (at Middlesborough Crown Court)
[copyright, torrent site, criminal infringement, liability, mere conduit exemption]
 
[On the basis of the infringing activities occurring on his website, the operator of Oink’s Pink Palace (which was a BitTorrent-oriented music sharing website running a torrent tracker) was charged with conspiracy to defraud. The court found that the defendant operator acted dishonestly and refused to apply the E-Commerce Regulations’ “mere conduit” safe harbour (see above), stating that this provision is aimed at principally legitimate operations, and Oink’s Pink Palace doesn’t count as such. However, the defendant was ultimately acquitted by the jury.]
 
R. v Rock and Overton (2010) T20087573 (at Gloucester Crown Court)
[copyright, streaming, indexing service, criminal infringement, liability, mere conduit exemption]
 
[The operator of a website known as TV Links (which facilitated copyright-infringing activities by hosting links to 3rd party streaming websites) was charged with conspiracy to defraud. The judge initially considered TV Links to lie outside of the E-Commerce Regulations’ “mere conduit” safe harbour (see above), since he saw the website’s operators as assisting their users in infringing activities, and recital 44 of the E-Commerce Directive states that “a service provider who deliberately collaborates with one of the recipients of his service in order to undertake illegal acts goes beyond the activities of ‘mere conduit’ or ‘caching’ and as a result cannot benefit from the liability exemptions established for these activities.” However, the defendants were ultimately able to rely on the reg. 17, for the E-Commerce Regulations did not transpose rec. 44 into the UK law.]
 
[trademark, hosting provider, infringement>, joint tort liability]
 
[Operator of an auction website was not found liable in joint tort liability for failing to prevent trademark-infringing actions of its users, who sold counterfeit goods bearing the claimant’s trademark through the defendant’s website. The case was nevertheless stayed, and referred to the CJEU on matters of EU-law based trademark infringement, liability limitation and preventive measures; the latter decision can be found in the EU section of the WILMap. Following the CJEU judgement, the UK case was settled.]
 
[defamation, online forum, indexing service, injunction, liability]
 
[This case was triggered by the appearance of defamatory comments on an online bulletin board, provided by the website operated by the first defendant. Apart from bringing the case against the said operator, the claimant also decided to sue the Google search engine (as a secondary defendant), due to the fact that the defamatory material could have appeared among the latter’s search results, in the form of a “snippet.” The claimant sought, among others, to obtain an injunction restraining the secondary defendant from “publishing or causing to be published or authorising to be published the same or similar words defamatory of the claimant within the jurisdiction of the court.” This request ended up being dismissed, since it was dependent on finding Google liable as a publisher, and the judge found that - in the factual circumstances at hand - the operator of a search engine could not be subjected to such liability.]
 
Bunt v Tilley [2006] EWHC 407 (QB)
[defamation, Usenet, liability, ISPs]
 
[This case saw three British ISPs (AOL, Tiscali and BT) being placed at the crosshair of publisher’s liability for defamatory posts shared through the Usenet newsgroups, due to the fact that the said ISPs provided the Internet connection to users who posted the defamatory material in question. The court found that the three ISPs cannot be regarded as publishers of the defamatory statements – instead, they should be seen as passive facilitators, lying outside of the scope of publisher’s liability.]
 
[defamation, newspapers, liability, freedom of expression]
 
[In this case, a defamatory article was posted on the website of the Wall Street Journal Online. The claim against Dow Jones (the publisher of the WSJ) failed due to the finding that no real and substantial tort was committed (only five people were proven to have read the defamatory content, what minimised the damage to reputation), and allowing the case to proceed would constitute an abuse of process.]
 
[defamation, Usenet, liability, ISPs]
 
[In the case of Godfrey v Demon Internet, a forged posting was shared through the soc.culture.thai Usenet newsgroup by someone pretending to be the claimant. The latter decided to sue the ISP operating the aforementioned newsgroup, for it did not respond to the notice of infringement made by the claimant, allowing the defamatory content to remain available for 10 days (until its automatic expiry). Demon Internet was found to be liable - it was held that as soon as an online service provider becomes aware (ie. acquires actual knowledge) of the defamatory use of its service, it becomes liable as a publisher of the defamatory information. Then, it has to remove the said content expeditiously, in order to prevent the further dissemination of the defamatory material – or incur further liability.]

CONTRIBUTORS

Chris Garstka
PhD Candidate, University of Nottingham
Email: llxkg5 at nottingham.ac.uk

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