Details of new form of dynamic blocking order released

Full details of the grant by the English High Court Chancery Division to Sky of a new form of ‘dynamic’ blocking order under s.97A of the Copyright Designs and Patents Act 1988 (Sky UK Ltd v British Telecommunications Plc & Ors [2023] EWHC 2252 (Ch)) have recently emerged. Blocking orders allow broadcasters to force internet service providers (ISPs) to block internet connections of certain customers where the ISP has knowledge that those customers are using their services to infringe copyright.

In the case, decided in July of this year, the novel element of Sky’s request was that it sought the ability to dictate to ISPs when it could apply the blocking measures and for how long. Mr Justice Meade raised some concerns on the proportionality of this request, with the potential of Sky using the order sought to block uncontroversial content or content which was less valuable than the premium content which formed the basis of the order. The Court also voiced some concerns that given the novelty of the request, there might be unintended consequences.

Nonetheless, the Court did grant the order, weighing up those concerns against:

• the fact that the ISPs did not oppose the order sought (indeed, none of the Respondents appeared at the hearing);
• the scale of Sky’s investment in obtaining the broadcast rights for the content;
• the strength of the evidence of infringement.

The Court also limited the initial period for which the order was granted to four months, to allow some additional supervision of the effects.

Application in Scotland

Blocking orders in Scotland are a form of interdict, i.e., an order preventing the target party from taking particular action. As well as the specific considerations which require to be made under s.97A, anyone seeking a blocking order in Scotland will also have to satisfy the usual requirements for obtaining an interdict. This requires satisfying the Court firstly that there is a prima facie case on the merits, that is, that there is a ‘colourable’ case, capable of success. Secondly, they would have to show that the balance of convenience is in their favour, meaning that the party seeking the order can show that their inconvenience would be greater by the order not being granted, than the inconvenience on the target party were the order granted.

Although this was a judgment of the High Court and so not directly binding in Scotland, the Court’s evaluation on proportionality grounds would sit comfortably with a balance of convenience assessment. On that basis, there is no reason to think that a dynamic order such as this could not be granted in Scotland on similar grounds.

There may be other benefits of seeking such an order in Scotland. The Intellectual Property Court in Scotland enjoys a reputation for providing swift and cost-effective consideration of urgent interim orders hearings, in front of an appointed Intellectual Property judge. Following the judgment in Hendricks, it is also now clear that any blocking order obtained in Scotland can have UK-wide effect.

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