Internet Blocking and One-sided Argument

November 29, 2013

I have become rather blasé about the regular reports of new blocking orders arising from proceedings in the High Court. I have lost track of how many orders there have been and no longer rush avidly to report the latest judgment. That complacency is understandable and it is a relief to see that Arnold J, who seems cursed to hear each of the applications from the ‘entertainment industry’, does not share it.

Here is Arnold J manfully grappling with the EU Directives and the judgments of the Court of Justice of the European Union, wrapped as they are in their own special miasmal mist, in {i}Paramount Home Entertainment International Ltd & Ors v British Sky Broadcasting Ltd & Ors{/i} {[2013] EWHC 3479 (Ch):}. But while he carefully raises each of the claimants’ contentions to the light and examines them for stains, his examination is handicapped by the absence of any argument against those claims. He reminds himself that Paramount etc must prove its claims but the big ISPs who are the defendants in the claim are not represented and have no real interest to defend. Nobody can be surprised that the web sites that will be blocked, whose owners clearly do have an interest to defend, are not represented. One of them, Solar Movies, has a domain based in Somalia (cue pirate jokes) and the other, TubePlus, appears to be based in Montenegro. You can bet your bottom dollar that neither care enough about the UK market to instruct counsel and pick up a bill for (everyone’s?) costs. The other people with an interest appear to be consumers but, as the facts point strongly to the consumers in question being consumers of illegal downloads, it is hardly an issue that should be grabbing the attention of Which?

Is any of this a problem? I think it is. The blocking injunctions are already edging along and now cover those who categorise and reference as well as those who provide infringing material directly. I don’t have a problem with that but I am wary of the ease with which blocking injunctions may be obtained in the future in the absence of any opposition. Even the more straightforward cases raise difficult issue and it seems inappropriate in an adversarial system for the judge to have to shoulder the burden of researching and realising all the counter arguments. Can the ISPs not spare a few bob to explore and query these claims, or even fund an amicus curiae? We might find that we get better long-term answers if the process is adversarial and avoid the establishment of awkward precedents. At the very least, we lift some of the burden from Arnold J.