The recent “blocking injunction” decision of Mr Justice Arnold in Cartier International and Others v. BSkyB and others  EWHC 3354 (Ch) has attracted considerable comment from intellectual property lawyers  but also contains a discussion of the Court’s jurisdiction to grant injunctions which is of general application and is potentially useful to media lawyers.
The issue in the case was whether a number of trade mark holders could be granted site-blocking injunctions against ISPs. Although there well established authority that such injunctions can be granted to protect copyright under section 97A of the Copyright, Designs and Patents Act 1988, there is no equivalent statutory provision in relation to online trade mark infringement.
As a result, Mr Justice Arnold had to consider whether such a power could be found in the general jurisdiction to grant injunctions found in section 37(1) of the Senior Courts Act 1981. This provides that
“The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so”.
Although these are completely general words it has often been suggested that an injunctions should only be granted to protect a legal or equitable right and in other limited situations where the conduct of the defendant is “unconscionable”. Thus in the Cartier case the ISP defendants submitted that an injunction could only be granted
“i) where one party to an action can show that the other party has invaded, or threatens to invade, a legal or equitable right of the former, for the enforcement of which the latter is amenable to the jurisdiction of the Court; and (ii) where one party to an action has behaved, or threatens to behave, in a manner which is unconscionable” .
This submission was rejected. On the contrary, the Judge held that there were no such limits on the court’s jurisdiction. He accepted that the power of the Court to grant injunctions is “unlimited” and can be exercised in new ways.
He relied, inter alia, on the case of Samsung Electronics (UK) Ltd v Apple Inc ( EWCA Civ 1339) in which the Court of Appeal upheld an order against Apple requiring it to publicise the court’s decision by a notice and hyperlink on its website (see our post on the case by Dan Tench and Jack Gilbert). This “publicity order” was a mandatory injunction which did not support any legal or equitable right and was not the result of any “unconscionable conduct” by Apple.
Of course the fact that the jurisdiction is “unlimited” does not mean that an order will be granted in every case. It is always necessary to consider, on the facts of each case, issues of proportionality and the extent of the interference with the rights of others.
In the Cartier case, the judge held that in assessing proportionality he should consider
“i) The comparative importance of the rights that are engaged and the justifications for interfering with those rights.
ii) The availability of alternative measures which are less onerous.
iii) The efficacy of the measures which the orders require to be adopted by the ISPs, and in particular whether they will seriously discourage the ISPs’ subscribers from accessing the Target Websites.
iv) The costs associated with those measures, and in particular the costs of implementing the measures.
v) The dissuasiveness of those measures.
vi) The impact of those measures on lawful users of the internet” .
Having considered each of these factors he said:
In my view the key question on proportionality is whether the likely costs burden on the ISPs is justified by the likely efficacy of the blocking measures and the consequent benefit to [the claimants] having regard to the alternative measures which are available to [the claimants] and to the substitutability of the Target Websites. Having given this question careful consideration, the conclusion I have reached, after some hesitation, is that it is justified. Accordingly, I consider that the orders are proportionate and strike a fair balance between the respective rights that are engaged, including the rights of individuals who may be affected by the orders but who are not before the Court .
The implications of Mr Justice Arnold’s analysis of the jurisdiction to grant injunctions (which is worth reading in full,  – ) are very wide ranging. It means that, in the media law context a court would, for example, have jurisdiction to make orders:
- Publicising the court’s judgment – this is not limited to the new statutory power to order the summary of a judgment in a defamation case (section 12, Defamation Act 2013) but could be used, for example, in a harassment case.
- Requiring a defendant (or a third party) to take pro-active steps to prevent future infringements of the claimant’s rights – it is noteworthy that the ISP blocking orders discussed in the Cartier case include provisions for the claimants to add new websites from time to time.
- Requiring a defendant to identify the persons to whom s/he had send defamatory or harassing material and to send them corrective material.
It will be interesting to see whether media lawyers are able to develop and use the wide ranging powers of the court to assist in protecting their clients rights to privacy and reputation.
 For discussions of the Cartier case by specialist IP lawyers see