LONDON – The United Kingdom Supreme Court gave judgment today (see judgment) in a landmark appeal over whether internet service providers (ISPs) should bear costs of blocking infringing websites. The successful appellants were British Telecommunications plc and EE Limited. The following intervened in the appeal: The Open Rights Group, the BPI (British Recorded Music Industry Limited), the MPA (The Motion Picture Association) and the Mobile Network Operators Telefónica, Vodafone Limited and Hutchison 3G UK Limited.
The appeal was heard in January by Supreme Court Justices Lords Mance, Kerr, Sumption, Reed and Hodge.
The Court’s judgment was given by Lord Sumption, with whom the four other Justices agreed.
Lord Sumption summarised the question as follows: When an injunction is obtained against an innocent intermediary to prevent the use of his facilities by wrongdoers for unlawful purposes, who should pay the cost of complying with the order?
The decision of the Supreme Court was that in principle the rights-holders should indemnify the ISPs against their reasonable compliance costs. The court said that it is critical to these conclusions that the intermediary in question is legally innocent, which the appellants in this case are, because they are ‘mere conduits’.
Michael Skrein, Reed Smith partner who led the appeal team, commented: “Lord Sumption, whose judgment was supported by the four other Supreme Court Justices on the panel, analysed the deep roots of the relevant principles of English law against the background of the EU Directives and declared that ‘There is no legal basis for requiring a party to shoulder the burden of remedying an injustice if he has no legal responsibility for the infringement and is not a volunteer but is acting under the compulsion of an order of the court’.”