The Supreme Court heard the Cartier appeal on Tuesday, 30 January.
The Supreme Court of England and Wales occupies a building in Parliament Square, London. It takes its place in a quadrangle together with the Houses of Parliament, the Treasury and Westminster Abbey. The Court’s proximity to the centre of Government and Church is deliberate. The Court is a separate and essential element in the legislative structure of the State. Separation and independence are fundamental when the UK’s highest Court is required to grapple with issues that are directly relevant to Government policy.
On Tuesday, 30 January, the Supreme Court heard an appeal in the Cartier case. This case concerns the actions that broadband Internet Service Providers (“ISPs”) can take to prevent unlawful activity online.
The Government’s policy on the Internet and the enhanced and proactive role that Internet operators can play was the focus of the Prime Minister’s speech in Davos last week. Theresa May spoke forcefully about the transformational and positive effects of the Internet. She also highlighted once again how the Internet can be used to enable unlawful activity on a scale that dwarfs that perpetrated in the offline world. She urged technology companies and their investors to “play their part and do more” to deal with “harmful and illegal online activity”.
In the Cartier case, the High Court and the Court of Appeal have so far determined that when it comes to tackling the unlawful sale of counterfeits online, ISPs can be required to implement technical measures to block websites that are focused on selling fakes. In essence, if a website is established with the aim of selling fake goods to a global market, there is no reason why this type of site should be given the lifeblood of the Internet to enable it to prosper. Instead, the site should be blocked by ISPs so that it is not accessible. In making this decision, the UK courts have determined that it is the ISPs that should have to incur the cost of implementing the technical measures that they have available to them to ensure that the blocking is effective.
When the Supreme Court hears the appeal in this case on Tuesday, we can expect that the court room will be full. In addition to interest from the public, there are also interventions from the film industry and music industry as well as mobile network operators and an organisation called Open Rights Group (purporting to represent the interests of Internet users).
Whilst the case itself is limited to the facts of the particular websites and the particular measures that can be taken by UK ISPs, the broader issue is fundamental to society and the rule of law. As such, the Court’s judgment is likely to have significant repercussions.
If it is in the interests of our country to have terrorist videos removed from Facebook, should the taxpayer foot the cost of ensuring this or should Facebook?
If there are websites dedicated to promoting self-harm and suicide, should these sites be removed from Internet search engines? If so, should the taxpayer pay to get them removed or should Google and others do more? If there are websites selling counterfeit goods, should they be removed/blocked? Who should pay? The owner of the rights or should the Internet businesses foot the cost?
The legal arguments around these questions are of course very involved. In the offline world, it has generally been the case that where someone needs help from a third party, that person needs to pay to get the help. So, if someone commits a fraud against an individual or company and help from banks is needed to work out where the money has gone, the banks can recover their costs of providing the required information.
In the Internet context, there is not so much case law on the question of who pays, but there is a lot of legislation that puts Internet operators in a very different position. Internet operators have the protection of special immunities that have allowed big businesses to grow without fear of liability. Potentially, without immunities from prosecution, a provider like BT could be liable for its part in transmitting unlawful content. Without immunities, YouTube could never have built up its operation by hosting vast amounts of copyrighted video content and only removing individual items when asked to do so. So, in the Cartier case, the argument is that the special and protected position of Internet operators changes things. Although Internet operators can be sued for damages, they should have to foot the cost of doing what they can to stop unlawful activity.
At INCOPRO, our mission is “to make the Internet better for business”. In the Cartier case, INCOPRO’s Identify platform was used to provide evidence that established that site blocking had worked in other contexts and that it was likely to work when stopping access to websites selling fake products.
At INCOPRO, we believe that there is a lot more that technology can do to help to re-establish the operation of the law online – both using the technical infrastructure of the Internet and technologies like those developed by INCOPRO to enable effective and scalable monitoring and enforcement.
We hope the Supreme Court will agree.
INCOPRO is committed to helping brand and IP protection in the ever challenging online and offline environments. For more information, please contact us.