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The Liability of Internet Intermediaries The Liability of Internet Intermediaries

Contents

The Liability of Internet Intermediaries The Liability of Internet Intermediaries
1

De-indexing orders 16.05

1.1

Private de-indexing practices 16.18

1.2

Jurisdictional basis 16.39

1.3

Examples of de-indexing orders 16.82

2

Asset freezing orders 16.111

2.1

Freezing and removal compared 16.115

2.2

Existing procedures for freezing orders 16.116

2.3

Procedural safeguards 16.128

2.4

Policy arguments 16.137

16.01 This chapter considers the availability of two new forms of injunctive relief against internet intermediaries. The first is a mandatory injunction, likely to be directed at a search engine operator or other aggregator of information, to remove a reference to tortious or unlawful material. Similar relief is already available for the purpose of erasing or blocking access to personal data in the circumstances considered in chapter 10.1 Equivalent relief may also be available to remove links to copyright infringing material in the form of service provider injunctions under section 97A.2 In addition to these statutory remedies, wider de-indexing orders are theoretically within the courts’ jurisdiction for at least the purposes of giving effect to fundamental rights or preventing infringements of intellectual property.

16.02 The second remedy considered in this chapter is a freezing order, normally directed at a payment intermediary, directing the respondent to cease distributing the proceeds of tortious or unlawful activity. The objective of such a remedy is to deprive a tortfeasor of the ability to enjoy the financial proceeds of internet wrongdoing, using online transaction services to regulate the flow of payments and act as a deterrent against tortious activity.

16.03 Outside very specific doctrinal contexts, neither of these orders has a direct statutory footing in the United Kingdom, though some other member states make limited provision for similar remedies. Nevertheless, they find support in the courts’ general powers to issue injunctions, provided that the respondent can be brought within a category of primary or secondary wrongdoing, or falls within recognised equitable principles.3 It is suggested that in limited cases, de-indexing and freezing orders may function as necessary and proportionate forms of relief in cases involving internet wrongdoing enabled by intermediaries.

16.04 In what follows, readers should be cautioned that this chapter enters new and largely unexplored territory. These remedies, if recognised by the courts or Parliament, are likely to be subject to analogous limitations to blocking and other remedies against internet intermediaries, in particular based on whether relief is proportionate having regard to its costs, benefits, and wider consequences, and whether relief strikes a fair balance between the interests of claimants, service providers, and the public. However, these questions have not yet been considered by the English courts in this context.

16.05  Relevant intermediaries. This section considers the potential availability of de-indexing orders and their application to the activities of search engines and other gateways. Such services are the predominant means by which internet publications are found.4 However, a de-indexing remedy could also be sought against website operators, platforms, social networks, and potentially any other source of a hyperlink to tortious material.

16.06  Purpose of de-indexing. De-indexing (also called ‘de-listing’) differs from other remedies against internet intermediaries: it does not involve removing the material complained of at its source, whether voluntarily or by injunction; nor does it involve disclosing the primary tortfeasor’s identity, opening the path to a direct remedy against him or her. Instead, de-indexing seeks to make it more difficult for internet users located within the jurisdiction to find material which cannot be removed by other means. Unlike a blocking order, de-indexing does not aim to prevent access to material using technical means, but rather to increase the difficulty of locating the material using the respondent’s services.

16.07  Effect of de-indexing. A de-indexing injunction orders such a person to disable access to tortious material at a specified internet location. The source material is not itself removed or blocked—anyone who knows the URL may still access it directly or via another hyperlink. Rather, the indexing service is told not to display hyperlinks to it, making it harder to find and access. Traffic to de-indexed material can be expected to decline—and with it, the damage caused by dissemination—on the reasonable assumption that if users do not already know the relevant URL and cannot locate it by means of a search engine or hyperlink, then they are unlikely to stumble upon it accidentally. In a very real sense, websites that are de-indexed cease to exist, instead becoming submerged beneath the trillion unique URLs which are indexed. In this way, de-indexing offers one solution to the problem of ‘permanent disfigurement’ created by the persistence of digital content.5

16.08 This section begins by discussing the voluntary de-indexing practices of major search engines, and the conditions that must be satisfied before de-indexing will be available under their published policies. Next, this section discusses the potential jurisdictional basis of a non-statutory judicial remedy. It is suggested that a service provider, who is not an infringer, may be ordered to cease facilitating a third party’s primary wrongdoing by means of removing a hyperlink to tortious material where it is necessary and proportionate to do so. The nature and scope of this jurisdiction remain poorly understood, but it appears to embody an extension of the wider principle underlying Norwich Pharmacal orders and the equitable protective jurisdiction; namely, that a secondary actor who becomes mixed up in primary wrongdoing owes a duty not to continue facilitating that wrongdoing once notified of its existence. Such a person may be wholly innocent of wrongdoing but is not a mere witness, because he knowingly facilitates wrongdoing.

16.09  Empirical research. It is clear that the methods by which internet search results are ranked and sorted can be highly influential in determining the extent of damage caused by tortious activity. Empirical research is beginning to emerge which suggests that user behaviour is strongly influenced by the available options presented in search results. For example, one study concluded that ‘the prominence of search results can play an important role in users’ subsequent choices about whether to pirate content or consume through legal channels’.6 In that study, a neutral control search engine led to 80 per cent of participants purchasing lawful content; 94 per cent did so in a search engine optimised to promote legal content, but only 56 per cent did so in a search engine optimised to promote infringing content. The results were stronger among university-aged students (62 per cent purchasing lawfully via the neutral search engine, 92 per cent doing so via the lawful content search engine, and 39 per cent using the infringing content search engine) and stronger still where the degree of optimisation was higher.

16.10  The Robots Exclusion Protocol. Two methods of de-indexing should be distinguished. The first relies on a technical standard known as the Robots Exclusion Protocol. By adding the appropriate commands to a file called robots.txt and uploading that file to a public directory on a web server, publishers can instruct automated crawlers to ignore specified portions of their websites.7 Such de-indexing is automatic and instigated by the website operator; most search engines execute these requests as a matter of custom as part of their automated indexing processes.

16.11  Manual removal. The second method involves manual removal of a particular URL from an index, webpage, or feed. In effect, this would involve using liability rules as non-technical means of regulating search engine technology to carry out mandated search engine optimisation (‘SEO’). In other cases, defensive SEO may be a viable alternative to litigation against the primary wrongdoer, especially for reputational wrongs.

16.12  Advantages of removal at source. Unlike blocking, de-indexing does not affect the existence of the original material, which can continue to be accessed by internet users who can locate it by other means. De-indexing, like blocking, is specific to the targeted service provider, so the material must be de-indexed from each search engine separately. (In most jurisdictions, Google accounts for the vast majority of search traffic.) Further, de-indexing is normally territorial, requiring separate de-indexing by search engines established in different jurisdictions. Finally, the most obvious limitation of de-indexing is that a user may type in the de-indexed URL directly, find it by means of another tool, or be directed to the material on a website or discussion forum.

16.13  Advantages of de-indexing. De-indexing orders offer some benefits over removal. First, they are local and in personam remedies, which can be applied to search engines within a particular jurisdiction without affecting access in other countries, even if the court has no personal jurisdiction over the primary wrongdoer. While some scholars argue that this fractures and undermines the global nature of the internet,8 it also offers a degree of territorial granularity that the unwieldy hammer of removal cannot. Remedies can be tailored to the limits of the protected interest (eg a domestic reputation or infringement of a territorial trade mark) without affecting access to the material in countries where use is considered legitimate or protected by foreign defences.

16.14 Second, de-indexing orders are temporary: injunctions can easily be lifted, but files can be undeleted only with difficulty. When sought as an interim measure, therefore, de-indexing better preserves data which may eventuate not to be tortious.

16.15 Third, de-indexing does not normally require the cooperation of foreign service providers. For example, the respondent may be a search engine with a subsidiary within the jurisdiction which sells advertising or provides other services in the context of the parent company’s search engine, such that it is inextricably linked to the activities of the foreign parent company. Conversely, removal of content from a hosting platform may require the cooperation of internet intermediaries who operate beyond the reach of injunctive relief and have commercial or ideological incentives not to remove material.

16.16 Fourth, if material is reposted by the primary publisher in an attempt to circumvent an order, de-indexing allows mirror sites to be notified to a single search engine with relative ease, compared to the need to identify and notify different hosts or platforms of the material, or different ISPs through which it is possible to access the material.

16.17  Social dissemination. Neither de-indexing nor freezing orders are effective to curtail social systems of dissemination, such as forwarded e-mails and word of mouth. If a user discovers interesting but tortious material, then it may be spread privately among peer networks, even if the original website is de-indexed. Some of this secondary material would then be indexed in search engines; removing mirror URLs could quickly become unmanageable and pointless. This emphasises that access restrictions are inherently incomplete, and most useful: (1) to protect material which has not yet been discovered; (2) to limit the speed with which time-sensitive material diffuses; (3) to limit the time for which material is readily available (on the reasonable assumption that human memories fade quicker than those of search engines); and (4) to increase the difficulty of sharing large binary files, such as copyright-protected films, videos of private conduct, and dossiers of documents. However, such orders are less able to prevent the dissemination of textual information, photographs, or information whose import can easily be summarised or re-expressed.

16.18  Impetus for voluntary de-indexing. Search engines face growing pressure to develop more effective methods of voluntarily de-indexing tortious material. For example, in March 2012 the Joint Committee on Privacy and Injunctions concluded that

it was possible to develop the technology proactively to monitor websites for such material in order that the material does not appear in the results of searches. We find [Google’s] objections in principle to developing such technology totally unconvincing. Google and other search engines should take steps to ensure that their websites are not used as vehicles to breach the law and should actively develop and use such technology.9

16.19 Most search engines have well-established internal procedures for the removal of links to content prohibited by their policies. These procedures are usually described as ‘takedown’, even though their object is typically to remove hyperlinks to tortious material rather than deleting the material itself.

16.20  Criticisms of voluntary de-indexing. Private de-indexing practices operate successfully on a large scale and offer low-cost relief to many victims of wrongdoing. However, they suffer from three major defects.

16.21Arbitrary and inconsistent criteria. First, voluntary de-indexing practices embody arbitrary criteria as to the degree of notice and proof required, the type of wrongdoing that can support an application, and the extent of removal. They are oriented towards copyright infringement and fail to respond effectively to many other forms of wrongdoing, especially defamation and contempt of court. As a consequence, the conditions for de-indexing vary between search engines, potentially leading to different treatment of identical material.

16.22Operation outside the rule of law. Second, applications for removal are assessed by employees in accordance with company policies, rather than by judicial bodies in accordance with law and taking account of human rights. Parties who are adversely affected by capricious or arbitrary—but lawful—decisions by indices possess very limited options for internal or external review of a decision, leading to a perception that intermediary decision-makers operate outside the rule of law. This section does not go so far as to suggest there is a ‘right to be indexed’. Instead, it points out that private indexing policies lack legitimacy because the rules—and decisions under them—are not promulgated by public authorities or subject to judicial review.

16.23Lack of transparency and procedural fairness. Third, private de-indexing does not always operate fairly, consistently, or in accordance with standards of procedural fairness. Search engines may fail to notify applicants or affected parties of a decision, or communicate reasons for reaching it. When de-indexing does occur, it is often hidden from internet users.10

16.24Perceived lack of legitimacy. Search engines and other indices who de-index material face recrimination regardless of whether they censor or preserve search results; moreover, without any cost-shifting mechanism, they cannot recover their removal costs, and have little incentive to invest in more comprehensive notification, review, and monitoring systems.

16.25 In short, private de-indexing has the potential to be extremely effective, cost-effective, and targeted, but suffers from many of the same shortcomings as notice-and-takedown, and lacks the public legitimacy and transparency of a judicial remedy. Current practices are explained in further detail in the following paragraphs.

16.26 Google has the most developed de-indexing policies of any search engine. Those policies (as presently published) permit de-indexing in six circumstances.

16.27Violation of webmaster guidelines. First, a website which violates the company’s webmaster guidelines may be ‘sandboxed’, which penalises the website in search results. Although few details of this mechanism are publicly known, it appears that sandboxing is applied ex officio to websites that use paid, hidden, or reciprocal links to inflate their search ranking artificially. It is designed to preserve the integrity of query results and to deter website operators from adopting predatory or unfair SEO practices.

16.28Defamation and copyright infringement. Second, Google may remove defamatory or copyright-infringing material from its index upon receipt of a valid notification from a court, the claimant, or her authorised representative.11 The notification must specify the relevant URLs and explain why the content is unlawful under an ‘applicable law’. Google will assess the complaint and determine whether de-indexing is justified. In January 2016, it received 77,024,967 requests for removal of URLs for copyright infringement, up from 18,528,185 requests in February 2013, and 1,431,794 in March 2012. Google complied with 99.97 per cent of these requests in 2012.12 United Kingdom government removal requests increased by 98 per cent over the same period.13

16.29Specified personal information. Third, Google may de-index websites that publish limited categories of personal information, such as social security and bank account numbers, signatures, and legal names appearing on an adult website which breaches Google’s webmaster quality guidelines.14

16.30Removal of other personal data. Until 2014, Google advised that claimants whose personal data or private information had been published without their consent ‘should try to fix the problem at the source’, but refused to de-index the material independently.15 It is unclear why Google was willing to entertain requests to remove search results which infringed copyright but not those which infringed privacy or trade marks. Following the Google Spain decision, Google has revised its policy on private information, which is discussed in chapter 10.16

16.31Expired cached material. Fourth, Google may expedite the automatic removal of a cached webpage which has since been deleted or modified by its operator.17 A cache removal request will automatically update the copy stored in Google’s index, preventing users from accessing the original version.

16.32Child abuse material. Fifth, Google implements the IWF blacklist to remove links to known child abuse materials.18

16.33Court orders. Sixth, a party may submit a court order from any jurisdiction requiring the ‘removal’ of content. Google will assess the order internally and determine whether it is valid, issued by a competent tribunal, and justifies de-indexing.19

16.34 Although Google’s transparency is laudable, the boundaries of its de-indexing policies appear to be arbitrary—or at least designed to minimise expenses and insulate its keyword advertising programmes—rather than to assist claimants. For example, in cases of trade mark infringement, Google states that it is ‘not a mediator’ of content disputes, and refuses to de-index any page on trade mark grounds.20 Instead, it advises claimants to contact the relevant website operator directly.

16.35  Query auto-completion. Google excludes certain search queries from auto-completion. Blacklisted queries relate mostly to adult and violent content, though they have also been extended to encompass certain queries related to copyright infringement.21 The effect of blacklisting is that such queries are not suggested to users as they type. Although not strictly examples of de-indexing, the auto-completion blacklist renders those queries less likely to occur, and indirectly discourages users from accessing tortious search results. Queries related to private information22 and defamation23 are not filtered.

16.36  Policies of other search indices. Other search engines, such as Microsoft Bing, entertain ‘content removal requests’ that specify a valid reason for removal.24 The list of valid reasons reads like a page from Borges’s Celestial Emporium of Benevolent Knowledge,25 and includes: cached content, abusive or improperly classified adult content, copyright infringement, malicious or spam content, court-ordered removal, and the nebulous category of ‘illegal material’. Like Google’s policies, the boundaries of de-indexing remain unclear and appear to be determined on an ad hoc basis. This undermines transparency, increases the risk of arbitrary or inconsistent decision-making, and reduces the legitimacy of non-judicial de-indexing decisions.

16.37  Facebook. Similar procedures exist for manual removal of hyperlinks from social networks’ indices. For example, clause 5.2 of Facebook’s Statement of Rights and Responsibilities permits the company to ‘remove any content or information’ posted to Facebook which it believes violates the Statement or the law.26 Specific notification procedures also exist for de-indexing content which infringes copyright, trade marks, children’s rights, false impersonation policies, or local privacy laws.27 In the latter case, Facebook stipulates that it will review a request to determine whether any action is ‘required by relevant privacy laws (located outside the United States)’.28 Successful use of these notification procedures may result in posts linking to external content being removed. Other postings, such as profile pages, groups, and events, will be de-indexed from Facebook’s internal search facility as a by-product of removal.

16.38  Twitter. De-indexing by Twitter and other services usually requires the claimant to request the relevant intermediary to alter hosted content (such as a ‘tweet’ or posting) which contains a hyperlink to the material complained of. For example, in May 2012, the Indian Premier League had tweets removed which linked to websites streaming unauthorised live cricket matches.29 However, a search for ‘ipl stream’ on Twitter still yields thousands of other tweets referencing sources purporting to offer infringing content.30 If both the hyperlinking website operator and the source website operator refuse to intervene, there is usually little a claimant can do to prevent such material from being accessed, absent enforceable injunctive relief.

16.39  Inherent jurisdiction. It appears arguable that English courts have the power to grant non-statutory de-indexing remedies. In addition to tort-specific statutory remedies,31 English courts have an inherent jurisdiction to grant injunctions wherever it is just and convenient to do so. That jurisdiction is now confirmed by statute;32 section 37(1) of the Senior Courts Act 1981 provides:

The High Court may by order...grant an injunction...in all cases in which it appears to be just and convenient to do so.

16.40  Source of the power. Although expressed in statutory language, this provision confirms but does not itself confer the jurisdiction of the Senior Courts of England and Wales to grant injunctive relief. That power may be traced back to the Judicature Acts,33 which conferred the previous jurisdiction of chancery courts upon common law courts so as to enable the parallel administration of law and equity by the same courts.

16.41  Practices of granting injunctions. However, the principles on which the courts would act when granting injunctions did not change, at least upon judicature.34 For example, in North London Railway Co v Great Northern Railway Co, Brett LJ stated that ‘if no court had the power of issuing an injunction before the Judicature Act, no part of the High Court has power to issue such an injunction now’.35 Courts of equity always possessed the inherent power to grant injunctions.36 However, it is important to bear in mind that section 37(1) is not a cause of action in itself and merely reflects the courts’ broad powers to grant remedies where a cause of action has been established.

16.42  Meaning of ‘jurisdiction’. The word ‘jurisdiction’ is beset by difficulty, chiefly because it is used by judges in two very different senses. Jurisdiction in the first sense refers to the strict power of a court to make an order against a party properly before it. Jurisdiction in the second sense refers to the principles on which that power may be exercised by convention.37 Courts sometimes fall into error when they refer to one kind of jurisdiction but mean the other, or use the broad label without distinguishing between these two meanings.

16.43  Expansion of practice. The power reflected in section 37(1) is of almost unlimited breadth and flexibility.38 Its application has evolved over time, leading to gradual but progressive expansion of the circumstances in which injunctions may issue. In Fourie v Le Roux, Lord Scott reviewed the many authorities to consider the courts’ powers to grant injunctions and concluded:

these authorities show...that, provided the court has in personam jurisdiction over the person against whom an injunction...is sought, the court has jurisdiction, in the strict sense, to grant it. The practice regarding the grant of injunctions, as established by judicial precedent and rules of court, has not stood still since The Siskina was decided and is unrecognisable from the practice to which Cotton LJ was referring in North London Railway Co v Great Northern Railway Co...39

16.44  Application to internet intermediaries. Relying on this passage, Arnold J in Cartier (a case examined in chapters 7 and 14) concluded that the Court had jurisdiction to grant a new kind of blocking remedy which had not hitherto been granted and did not have a statutory origin. His Lordship commented that the principles governing the grant of injunctive relief ‘have evolved over time as the Court has faced new circumstances’.40

16.45 If this reasoning is followed, this would suggest that the Court’s inherent jurisdiction to grant injunctive relief could be used to fashion a general remedy against non-tortfeasor intermediaries where a basis for the injunction can be identified within established principles, without statutory implementation. However, such an argument faces considerable (though perhaps not insurmountable) difficulties.

16.46 The courts’ jurisdiction to grant injunctions against intermediaries who are not wrongdoers can be summarised in the following propositions.

16.47Facilitation. First, the basis for such injunctions depends on the type of wrongdoing that is alleged and the nature of the service provider’s contribution to it. In general, it will be necessary to show that the intermediary has in some way facilitated the wrongdoing such that it is not a mere witness to that wrongdoing.

16.48Principled basis for an injunction. Second, the starting point is that where there is no statutory remedy and the respondent has not committed any actionable wrongdoing, the court will require the principles governing injunctive relief to be satisfied. This requires the applicant for a de-indexing remedy to identify a principled basis for the making of an order against the intermediary.

16.49Claims in aid of Convention rights. Third, there are good arguments that section 37(1), read in conjunction with sections 3 and 6(1) of the Human Rights Act 1998, provides a basis for courts to grant relief where three conditions are satisfied:

(a)

the applicant’s Convention rights are engaged;

(b)

on a fair balancing of the competing interests, the applicant’s rights should prevail; and

(c)

de-indexing is a necessary and proportionate measure to protect those rights.

16.50Claims in aid of other rights. Fourth, in other cases, it is possible that a de-indexing injunction could issue in one of three ways:

(a)

against the primary wrongdoer and then brought within the Spycatcher principle by service upon each search engine or other linking intermediary sought to be enjoined;

(b)

in aid of rights in a proceeding being litigated abroad; or

(c)

as an order ancillary to a local claim (actual or in contemplation) against the primary wrongdoer, pursuant to the equitable protective jurisdiction.

16.51Intellectual property claims. Fifth, in intellectual property claims an injunction may be available under section 37(1) interpreted compatibly with the Enforcement Directive, provided that the order meets the requirements (of fairness, cost, and proportionality) discussed in chapter 13. These propositions are developed in the following paragraphs.

16.52 At the outset, we must take care to distinguish among several sources of power to grant injunctive relief. The grant of an injunction in aid of legal or equitable rights involves the equitable auxiliary or exclusive jurisdiction, respectively.41 Similarly, the equitable protective jurisdiction preserves or protects the claimant’s ability to assert or enforce her rights in a subsequent trial against the primary wrongdoer; for example, by requiring the disclosure or preservation of evidence.42 In all cases the claimant must show some right which is or is at risk of being infringed, normally but not exclusively by the defendant to the action.

16.53 Injunctions operate in personam and will not normally bind non-parties unless addressed contra mundum and personally served.43 Additionally, because an injunction is a discretionary remedy, the court retains an unfettered discretion to refuse injunctive relief and award damages instead, having regard to all the circumstances. The various limitations which apply to injunctive relief in different contexts are discussed in chapter 13.44

16.54 Leaving aside cases of quia timet relief, an injunctive remedy normally requires proof of at least prima facie wrongdoing. However, that wrong does not always need to be one committed by the respondent to the order. There are cases in which—for reasons of practical or commercial necessity, procedural fairness, or the protection of fundamental rights—injunctive relief is available against a party who has committed no legal or equitable wrong against the claimant. In these cases, injunctive relief does not rest upon any tortious conduct by the defendant but is instead founded upon, variously, a recognised causal relationship between the defendant and a third party tortfeasor, the parens patriae (wardship) jurisdiction,45 the need for courts to act compatibly with human rights, or the receipt of notice of an injunction against a third party. Equitable relief in these cases does not require proof of actual or threatened wrongdoing; it floats upon the court’s inherent jurisdiction to uphold the administration of justice and thereby binds the respondent.

16.55 At least six instances of these ‘floating’ injunctions may be identified. First, a Mareva injunction obliges an innocent party (typically a financial institution) to prevent the dissipation of assets,46 notwithstanding that dissipation by the respondent may not amount to a tort. Second, a Norwich Pharmacal injunction obliges disclosure of a suspected wrongdoer’s identity and, as discussed in chapter 4, proceeds on the basis that the respondent is not a tortfeasor but rather a facilitator mixed up in wrongdoing.47 Third, an Anton Piller injunction obliges a party to preserve and grant inspection of relevant evidence that would otherwise face a serious risk of destruction.48 Such orders proceed from paramount necessity to preserve other rights belonging to the applicant, but the respondent need not have committed or be proposing to commit any tort.49 Fourth, the High Court can grant relief in aid of litigation abroad, even where no wrongdoing is alleged in the United Kingdom.50 Fifth, as noted above, a defendant may be restrained from activity likely to lead to future wrongs, even if its prior conduct is not tortious.51

16.56 Finally, the Spycatcher principle allows an injunction to be made contra mundum in an action against a primary wrongdoer and so bind any party having notice of it.52 Notified parties are obliged not to do anything to undermine or assist a breach of the injunction, or face liability as contemnors.53 This consequence makes Spycatcher orders an attractive remedy in cases involving privacy or confidential information, since the net of non-disclosure can be widely cast. The justification for such orders ‘is now derived from Convention rights’,54 presumably because section 37(1) must now be read in conjunction with sections 3, 6(1), and 6(3)(a) of the Human Rights Act 1998.

16.57 Originally, the contra mundum jurisdiction had its basis in the need to uphold obligations of confidence. The relevant considerations are now wider and encompass the protection of other fundamental rights. This requires the court to undertake the familiar balancing exercise.55 It follows that, at least in cases where Convention rights are engaged, courts may have power to grant, and a principled basis for granting, an injunctive remedy against an internet intermediary wherever, on a proper assessment of the competing rights, it is necessary and proportionate to do so.

16.58 If an internet intermediary has not engaged in wrongdoing and the case does not fall within a recognised category of floating injunction, it is uncertain whether it could be enjoined from assisting a tort. There are two possible approaches.

16.59  The traditional approach. According to the narrow view, an injunction, being a specific remedy, is granted only in aid of existing legal or equitable rights enjoyed against the party to be enjoined (subject to the limited exceptions noted previously). In The Siskina, Lord Diplock reasoned that to grant an interim injunction required ‘a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him, of a legal or equitable right of the plaintiff’.56

16.60 The traditional view finds support in a line of authorities going back to North London Railway Co v Great Northern Railway Co, where Cotton LJ held that the predecessor of section 37(1) required the existence of recognised category of right before the Court had jurisdiction to grant an injunction.57 However, modern cases prefer a more pragmatic and flexible conception of injunctive relief, as a result of which the traditional approach appears to be falling out of favour.

16.61  The broad approach. According to the broad view, the statutory jurisdiction is not so constrained.58 As Lord Nicholls argued in a dissenting speech in Mercedez-Benz AG v Leiduck:

the jurisdiction to grant an injunction, unfettered by statute, should not be rigidly confined to exclusive categories by judicial decision. The court may grant an injunction against a party properly before it where this is required to avoid injustice...The court habitually grants injunctions in respect of certain types of conduct. But that does not mean that the situations in which injunctions may be granted are now set in stone for all time.59

16.62 The majority expressly adopted the narrow view.60 Even Lord Nicholls accepted that, before granting relief, the Court must be satisfied that there is a cause of action ‘recognised by English law’ and that the relief is ancillary to that action.61

16.63 In the Channel Tunnel case Lord Mustill went further, requiring that an interlocutory injunction be ‘always incidental to and dependant on the enforcement of a substantive right’.62 This reflects the approach approved in The Siskina, where Lord Diplock characterised a Mareva injunction as ancillary to a substantive claim for debt or damages against the primary wrongdoer.63

16.64  The modern authorities. Nevertheless, the judicial winds are shifting towards the broad view. This is best encapsulated by the following dictum of Lord Woolf MR in Broadmoor Special Hospital Authority v Robinson:

The powers of courts with equitable jurisdiction to grant injunctions are, subject to any relevant statutory restrictions, unlimited. Injunctions are granted only when to do so accords with equitable principles, but this restriction involves, not a defect of powers, but an adoption of doctrines and practices that change in their application from time to time. Unfortunately, there have sometimes been made observations by judges that tend to confuse questions of jurisdiction or of powers with questions of discretions or of practice. The preferable analysis involves a recognition of the great width of equitable powers, an historical appraisal of the categories of injunctions that have been established and an acceptance that pursuant to general equitable principles injunctions may issue in new categories when this course appears appropriate.64

In Broadmoor, the Court of Appeal held that it had jurisdiction within section 37(1) to enforce a non-statutory public law duty by injunction.

16.65 In Cartier, the decision in Broadmoor was relied upon in support of the broad view of injunctions.65 This flexible approach reflects the sentiments underlying many recent injunctive remedies—including Mareva orders and anti-suit injunctions—which owe their existence to the continuous adaptation of section 37(1) to meet new circumstances. As Lord Scott remarked in Fourie v Le Roux, such remedies could not have developed ‘if Cotton LJ’s proposition still held good’.66

16.66 Faced with this largely unprincipled and pragmatic expansion, the precise scope of injunctive relief remains uncertain; few if any jurisdictional limits may still exist. However, although the courts’ power may be unlimited, the principles on which it is exercised are not (though they are of course not immutable). The authorities still suggest that injunctive relief is limited to situations where the defendant owes an existing legal, equitable, public law, statutory, or directly effective European law duty. The situations in which such duties arise are not closed, but there must be a principled basis for the grant of an injunction which is either within, or an analogical extension to, one of those situations.

16.67  Ancillary relief. Even under the more modern, flexible view of injunctive relief endorsed in Fourie v Le Roux, an injunction against a third party must still be ancillary or incidental to some legal claim against a primary wrongdoer. That claim need not have been commenced at the time when third party injunctive relief is sought, but it should be in contemplation. In practical terms, the issue of a claim form should be imminent and the applicant would be required to give an undertaking to do so promptly.

16.68 As Lord Scott remarked, ‘without the issue of substantive proceedings or an undertaking to do so, the propriety of the grant of an interlocutory injunction would be difficult to defend.’67 An injunction against a non-wrongdoer under the protective jurisdiction is, like an interim injunction, intended to preserve the applicant’s rights for some temporary period. Both remedies are therefore ‘dependent on the institution and progress of some proceedings for substantive relief’ in respect of the wrongdoing.68 The position of final injunctions is less clear, but it seems arguable that the same constraint applies.

16.69  Pre-action injunctions. This does not mean that proceedings are a precondition of jurisdiction. Like an interim injunction, an order against a non-wrongdoer may be made before substantive proceedings have been commenced and will be immediately effective. However, Fourie suggests that the applicant must then commence proceedings promptly, or the respondent will be able to apply to the court to have the injunction discharged.

16.70 Careful attention must be given to the nature of the substantive relief that is or will be sought by the applicant.69 Where the applicant for relief has stated that he or she will not pursue proceedings against the primary wrongdoer at all, that would presumably be a factor which militates against the issue of an injunction. This is because, consistent with Lord Scott’s remarks in Fourie, such an injunction would be difficult to defend if there are no substantive proceedings in contemplation.

16.71  Third party injunctions without proceedings. Not all authorities treat the requirement of substantive proceedings strictly. In Cartier, Arnold J considered that Fourie provided general support for an injunction against ISPs who had facilitated access to tortious websites, notwithstanding the fact that the applicant trade mark proprietors had clearly stated their intention not to commence proceedings against (or take any steps to locate) the wrongdoers who operated those websites.70

16.72  The analogy with Norwich Pharmacal disclosure. General non-facilitation orders against internet intermediaries could be fashioned by analogy with, and extension to, the equitable protective jurisdiction. The principle embodied in Norwich Pharmacal suggests that a person who innocently facilitates tortious activity should owe a duty to assist the person who has been wronged by ceasing to facilitate further wrongdoing once notified of it.71

16.73  Examples of application. The equitable protective principle has been applied in numerous cases involving offline intermediaries who dealt in infringing goods. The wharfingers in Orr owed a duty not to part with goods they knew to be infringing,72 and the labellers in John Walker owed a duty not to supply inherently deceptive instruments which they knew would be used in wrongdoing.73 So too, in Silverlock and One in a Million, injunctions were issued to prohibit the defendants from facilitating passing off;74 while in Intercen there would have been good arguments that the airliner could be enjoined from transporting the defendants’ infringing goods.75 In Upmann v Elkan, just as important as disclosure was the dock company’s obligation not to forward the counterfeit goods.76 These cases illustrate the jurisdiction’s long-standing but largely forgotten potential to prohibit those mixed up in tortious acts from continuing to facilitate wrongdoing.

16.74  Potential application to internet intermediaries. Similarly, it might be argued, search engines and other intermediaries who facilitate internet users to identify and locate tortious material owe an equitable duty to take necessary and proportionate steps not to facilitate the continuation of wrongdoing by supplying transmission services or drawing attention to such material. Disabling access to tortious electronic publications is one important aspect of this duty, but its content will vary depending on the nature of primary wrongdoing and the nature of the intermediary’s facilitation. Once material is proved to be tortious, an equitable duty would be enforceable by injunction if the facilitator is otherwise unwilling to act.

16.75 Applying the Norwich Pharmacal principle to internet intermediaries will require it to be applied to situations in which the respondent does not have physical possession of any infringing goods, but instead transmits tortious information or indexes and directs users to it. This necessarily involves an extension of the traditional principle, which is limited to facilitators who have possession, custody, or control of infringing goods. In L’Oréal, Arnold J expressed doubts about whether this principle applied in circumstances where the intermediary never took possession of infringing goods. However, in Cartier the same judge concluded that ‘it is not a long step from this to conclude that, once an ISP becomes aware that its services are being used by third parties to infringe an intellectual property right, then it becomes subject to a duty to take proportionate measures to prevent or reduce such infringements even though it is not itself liable for infringement.’77 If upheld, the same analogy could be argued to apply to other types of wrongdoing and other kinds of intermediaries.

16.76  Innocent facilitation. In unwittingly facilitating access or directing users to such material, an intermediary may become sufficiently mixed up in the primary wrong to justify injunctive relief to protect the claimant’s rights, subject always to any countervailing interests. Unwitting assistance is, of course, insufficient for monetary liability in tort,78 but—as discussed in chapter 4—it may create duties in equity which are enforceable by final injunction. It is suggested that the facilitation must be sufficiently material for the intermediary not to be a ‘mere witness’ to the wrongdoing, in the sense described in Norwich Pharmacal.

16.77  Intellectual property rights. This logic applies as readily to infringements of intellectual property rights as it does to other types of wrongdoing. If anything, the argument is strengthened by the obligation of courts to interpret section 37(1) compatibly with European law to the extent possible79—and specifically, article 8(3) of the Information Society Directive and articles 9 and 11 of the Enforcement Directive. Arnold J reached a similar conclusion in L’Oréal, holding that section 37(1) may include the power to grant an injunction against an intermediary whose services had been used by third parties to infringe a registered trade mark, if that is what article 11 required.80

16.78 Upon this question being referred to the CJEU, the Court explained that article 11 does require an injunction which is effective, dissuasive, and proportionate, and able to prevent future wrongdoing of the same kind. In eBay, the injunction was to prevent the listing of specific counterfeit goods, though this would be subject to the general prohibition on monitoring duties, and the other limits discussed in chapter 13.

16.79  ACTA. It is worth noting that the Anti-Counterfeiting Trade Agreement (‘ACTA’), had it been ratified, would have required contracting states to ensure that courts possess the power to issue ‘prompt and effective’ interim and final injunctions to an infringer and, ‘where appropriate, to a third party’.81ACTA did not confine the circumstances in which relief may be ordered by reference to any connecting factor. Instead, it required that an intermediary may ‘where appropriate’ be ordered to prevent any infringement.82

16.80  Transposition. If English courts already possess the power to make such orders, transposing these provisions would not require alterations to the existing tapestry of intellectual property remedies. However, given that domestic instruments such as section 37(1) were not intended to give effect to any rule of international law, it seems difficult to justify interpreting them compatibly with new international treaty obligations. In any event, ACTA appears unlikely to receive ratification.

16.81  Other treaties. It is also possible that similar obligations will be introduced into other international instruments, such as bilateral investment treaties or regional free trade agreements (in particular, the Trans-Pacific Partnership Agreement).

16.82  Discussion of search indices. Although English courts have not yet granted de-indexing remedies, there is now increasing judicial recognition that the availability of tortious information in search results can be a significant source of harm to claimants. For example, in one privacy case, search rankings were a decisive factor in assessing whether private information had become generally accessible,83 and therefore whether an injunction to prevent further dissemination would be a brutum fulmen.84

16.83 It is suggested that de-indexing is a natural extension of the equitable protective jurisdiction, since directing users to material by means of a hyperlink in search results is (1) clear facilitation of the relevant primary wrongdoing (eg, acts of publication, misuse of private information, communication to the public, or copying), and (2) often the primary, or at least a very significant, means by which the operators of websites gain access to audiences for such material. The content of the duty would be to take such measures as were reasonable and proportionate in the circumstances to remove notified hyperlinks to the material.

16.84  Assessing proportionality. The analysis of proportionality would involve similar factors to those considered in chapters 13 and 14; most importantly, de-indexing should be clearly confined to tortious material. Although there is no ‘right to be indexed’ (just as the right to freedom of expression in a screen play carries no right to have it broadcast), it is apparent that restrictions on connectivity and search can approach a point where freedom of expression is engaged in two ways.

16.85Rights of internet users. First, de-indexing of non-tortious material could restrict listeners’ rights to access information, similar to state-imposed restrictions on access to libraries or advice bureaux.

16.86Rights of publishers. Second, if an injunction denied publishers of non-tortious material access to an audience or customers, this could engage their rights to impart that material, communicate with others, and carry on business. The internet is unlike traditional one-to-many ‘broadcasting’ platforms such as television and newspapers; as a many-to-many platform, it may require two-sided expression rights. As ‘one of the essential foundations of a democratic society’,85 exceptions to this freedom must be construed narrowly and be proportionate to a pressing social need. Accordingly, to be justified ‘on cogent grounds recognised by law’86 de-indexing would need to be confined to URLs containing material that is probably tortious.

16.87  Trade mark de-indexing injunctions. De-indexing remedies have been granted in American trade mark litigation. For example, in Hermès International Inc v John Doe 1, the District Court for the Southern District of New York held that 34 websites selling counterfeit versions of the claimant’s handbags should be de-indexed by ‘any Internet search engines including...Google, Bing, and Yahoo, and any social media websites including...Facebook, Google+, and Twitter’, upon receiving actual notice of the Court’s order.87 Cote J held that, as the defendants were obvious infringers, any of their websites that contained the claimant’s trade marks should be removed from search results. Although this is a relatively clear case of infringement, the order was overly broad in that it failed to distinguish between infringing and non-infringing uses of the domain names.

16.88 In another trade mark case, the District Court for the District of Nevada went even further, granting an interim injunction that the defendants’ 228 websites ‘immediately be de-indexed and/or removed from any search results pages of all Internet search engines...and all social media websites’.88

16.89 Both cases demonstrate the power of de-indexing remedies; without traffic from the major indices, the defendants’ businesses would be unsustainable and the damage caused to the claimants and consumers would be greatly reduced. In this way, a meaningful injunctive remedy was possible despite many of the websites being hosted in offshore safe havens and content being impractical to remove at its source.

16.90  Source of jurisdiction. De-indexing is a recognised remedy in Canada. It is said to fall within the general jurisdiction of the court to grant injunctions. In Equustek Solutions Inc v Jack, the Supreme Court of British Columbia held that it was appropriate to grant an interim injunction to restrain Google Inc from including the defendants’ websites in search results generated by Google search engines.89 The order was sought under section 39 of the Law and Equity Act 1996 (CA), which is in very similar terms to section 37(1) of the Senior Courts Act 1981 (UK). Under the Canadian provision, injunctions may be issued in ‘in all cases in which it appears to the court to be just or convenient that the order should be made...on terms and conditions the court thinks just’.

16.91  The facts in Equustek. The claimants sought the de-indexing order in the context of proceedings between a manufacturer of industrial equipment and its former distributor, who had allegedly designed and manufactured a competing product using the claimants’ trade secrets. The defendants failed to comply with various court orders and their defences were eventually struck out. They carried on business primarily through ‘a complex and ever expanding network of websites through which they advertise and sell their product’.90 Although the defendants were ordered not to carry on business on these websites, they continued to sell the impugned product in breach of the orders.

16.92  Territorial competence. Following a previous interim injunction in the action addressed at the defendants, Google agreed to de-index 345 URLs associated with the defendants’ websites from local ‘Google.ca’ search results. However, Google refused to block another category of parent websites from global search results. The claimants argued that Google was facilitating the defendants’ ongoing breach of the earlier court orders by leading customers to their websites. Google’s primary submission was that the Court lacked jurisdiction to make a worldwide de-indexing order against the American company.

16.93 The Court rejected Google’s argument, holding that it had territorial competence over Google based on the inextricable link between Google’s search and advertising services, the latter of which was supplied from within British Columbia.91 The Court cited the Google Spain decision, and adopted very similar reasoning to the Court of Justice in this regard. The Court dismissed a related objection based on forum non conveniens grounds.92

16.94  Subject matter jurisdiction. The other aspect of the Court’s decision related to subject matter jurisdiction. Google argued that the Court lacked competence to make an order against a non-party that would have worldwide effect because it was not ‘just or convenient’ to do so. In particular, it argued that jurisdiction over a non-party was limited to cases where the non-party was deliberately breaching (or aiding and abetting a breach of) a court order which applied to it, or in certain narrow exceptions such as those considered earlier in this chapter. Google submitted that the Norwich Pharmacal principle went no further than requiring a non-party to provide information in exceptional cases.

16.95 The Court rejected this submission, while accepting that the order being sought was unprecedented. Fenlon J explained: ‘Lack of precedent should not be confused with lack of subject matter competence.’93 Her Honour proceeded to cite Broadmoor and Mareva, and noted the breadth of the Court’s powers to grant injunctions. The novelty of the remedy was ‘reason to tread carefully’ in making the order. Her Honour cited the observation of Newbury J in the first Canadian case to grant a Mareva injunction, that:

the courts must, in order to preserve the effectiveness of their judgments, adapt to new circumstances. Such adaptability has always been, and continues to be, the genius of the common law.94

16.96  Balance of convenience. Having concluded that it had jurisdiction to make a de-indexing order, the Court exercised its discretion in favour of granting relief. The Court applied the standard of a ‘strong prima facie...or a good arguable case’, followed by an assessment of the balance of convenience.95 Fenlon J derived this test by analogy with the Canadian approach to Mareva injunctions. In her Honour’s assessment, the arguable case related not to the breach of the earlier court orders, but to the claimants’ primary claim against the defendants. This approach is open to doubt in light of the expressed basis of the injunction, which was to prevent breaches of the orders (rather than breaches of confidence), but both approaches would have led to the same conclusion.

16.97  Relevant factors. In considering the balance of convenience, the Court referred to a number of factors.

16.98No monitoring. First, the order would not require Google to monitor the content of the defendants’ websites; it would simply require their removal from all search results, and represented ‘only a slight expansion’ of what Google had already agreed to do voluntarily.96

16.99Lack of lawful content. Second, although the order would de-index entire websites rather than individual URLs, this was unlikely to result in de-indexing lawful content, no doubt (one assumes) because the earlier court orders related to the entire websites in question, so that all of their materials were in breach of the orders.

16.100Consistency with foreign law. Third, Google submitted that an order of the Canadian court could not require it to take action in another country that would breach the law in that other country. It cited the Yahoo! Inc v La Ligue Contre le Racisme et l’ Antisemitisme decision.97 However, there was no suggestion that de-indexing would contravene Californian (or any other) law. The court might have added that Google routinely de-indexes materials voluntarily on various grounds from its global and regional search engines. Further, the protection of trade secrets by injunctions to restrain publication is a widespread legal norm and is reflected in key multilateral treaties.98

16.101Necessity. Fourth, a global de-indexing injunction was necessary, since otherwise Canadian users who overrode the default region and visited Google.com or another regional search engine would still see the defendants’ websites in those search results. One particularly relevant factor was that the defendants’ sales originated primarily in foreign countries, so de-indexing would need to address access by searchers in those countries.99

16.102Irreparable harm. Fifth, Fenlon J applied fairly conventional reasoning to conclude that the claimants were suffering irreparable harm by the ongoing sale of the competing product in arguable breach of confidence. It was common ground that Google was the primary means by which the defendants’ websites would be found, that de-indexing would not pose any expense, and that Google could comply with the order. In these circumstances, the Court concluded that it was just or convenient to make a global de-indexing order:

Google is an innocent bystander but it is unwittingly facilitating the defendants’ ongoing breaches of this Court’s orders. There is no other practical way for the defendants’ website sales to be stopped. There is no other practical way to remove the defendants’ websites from Google’s search results.... [A de-indexing] order is necessary to preserve the Court’s process and to ensure that the defendants cannot continue to flout the Court’s orders.100

16.103 Google was given 14 days to implement the order, the terms of which were as follows:

Within 14 days of the date of this judgment, Google Inc is to cease indexing or referencing in search results on its internet search engines the websites contained in Schedule A to the notice of application.

The defendants were ordered to pay all the claimants’ costs. However, no costs order appears to have been made against Google, despite it losing the claimants’ application.101

16.104  Decision on appeal. The conclusion of Fenlon J was upheld by the Court of Appeal for British Columbia. On the basis for exercising jurisdiction, Groberman J cited the decision in Cartier and reasoned that ‘Arnold J’s conclusions with respect to the jurisdiction of English courts to grant injunctions are equally applicable to the Supreme Court of British Columbia’ due to the common origin of those jurisdictions’ statutory provisions governing injunctions.102

16.105 However, it appears that, unlike the order made in Cartier, the order against Google would depend ‘on the existence of a justiciable issue between the parties to the litigation’, upon which the grant of injunctive relief against a third party was parasitic. Third party injunctions were thus ‘an ancillary means of preserving the parties’ rights’.103 This reflects the important procedural context of Equustek, in which the order against Google was made to enforce an order previously made in inter partes proceedings between a claimant (Equustek) and defendants (Datalink Technologies and its officers).

16.106  Territorial scope of de-indexing. In relation to the scope of de-indexing, the Court of Appeal affirmed the conclusion of the trial judge that the Court possessed in personam jurisdiction over Google that was sufficient to order de-indexing on a global basis, since there was a ‘real and substantial connection’ to British Columbia. However, the Court added that ‘Courts must exercise considerable restraint in granting remedies that have international ramifications’.104 Chief among these restraints is the concept of judicial comity, which requires that

courts should be very cautious in making orders that might place limits on expression in another country. Where there is a realistic possibility that an order with extraterritorial effect may offend another state’s core values, the order should not be made.105

16.107 On the facts, the Court concluded that a de-indexing order that was limited to the local http://google.ca search engine would not be effective. Groberman J appears to have accepted that, in view of the important policy of not ‘unnecessarily’ embroiling non-parties in litigation, such an order must be ‘necessary’. However, there was a sufficient basis for a worldwide de-indexing order, which was necessary as it was ‘the only practical way to impede the defendants from flouting the court’s orders’.106 Moreover, applications to vary the order could be made if an issue of comity arose, or if the websites began to be used for lawful purposes. Accordingly, the appeal was dismissed.

16.108  Copyright de-indexing orders. In L’Association des Producteurs de Cinema v Google France SarL, the Tribunal de Grande Instance Paris ordered Google, Microsoft, and Yahoo! (along with six French ISPs) to de-index (or block, in the case of the ISPs) video streaming websites that infringed the claimants’ members’ copyrights so that these websites would not appear in search results.107 The decision was based on L336-2 of the Code de la PropriétéIntellectuelle (French Intellectual Property Code), which transposes article 8(3) of the Information Society Directive. The ISPs were ordered to implement ‘all appropriate measures to prevent access’ to 16 infringing websites, while the search engines were ordered to de-index the sites for their French users.

16.109 The Court reasoned that de-indexing measures were the ‘most appropriate, efficient and least damaging measures to implement’, because the websites were infringing, but accounted for a small part of the search engines’ activity, and contained minimal lawful content. The order did not include mirror sites; the claimants would be required to apply separately to the Court, or request the ISPs and search engines to block them voluntarily. However, the French Constitutional Court also commented that L336-2 was limited to measures that were ‘strictly necessary to preserve the rights at stake’, and the orders must be ‘necessary, adapted and proportionate to the purported aim’.

16.110Portugal. In Sport TV Portugal SA v Persons Unknown, the Intellectual Property Court of Lisbon made a de-indexing order to require any search engine notified with the order ‘to adopt appropriate measures to eliminate’ 14 video streaming websites from search results in Portugal. The claimants were cable broadcasters of sporting events whose broadcasts were being streamed without authorisation on the target websites. They had attempted to contact the website operators but did not receive a response. The Court accepted that it had jurisdiction to grant the injunction pursuant to article 210G(1) of the Copyright and Related Rights Code (PT), but stressed that because the respondents were intermediaries who were not before the court, the order ‘must always be subject to the fair balance and proportionality and guarantee the rights of other legitimate users of the Internet, as well as be technically possible’.108 Injunctions were also made against the operators of the websites in question, and against Portuguese ISPs requiring access to be blocked. Costs were borne by the claimant.

16.111  The role of payment intermediaries. Platforms that distribute substantial quantities of tortious material rely upon advertising revenue and members’ donations to make their activities remunerative and meet the associated financial burden of hosting and disseminating the data. Such services rely upon a small group of payment intermediaries to enjoy the proceeds from the high volumes of traffic they attract. Indeed, the vast majority of this revenue is funnelled through just ten advertising networks and a small number of transaction gateways, such as Visa, Mastercard, and Western Union.109

16.112Follow the money’ enforcement. This suggests that a logical approach to reducing tortious activity would be to recognise injunctions which prevented payment intermediaries from distributing payments to the operators of platforms which engage in tortious conduct. This kind of remedy is sometimes described as a ‘follow the money’ model of enforcement.

16.113 Freezing injunctions of this kind do not involve imposing any monetary liability upon payment intermediaries; instead, they are modelled on the Mareva injunction, which is founded on an ancillary jurisdiction to protect a claimant’s legal remedies and uphold the administration of justice.

16.114 Although chiefly relevant to large-scale copyright infringement, a freezing remedy could also be applied to safe havens for defamatory or confidential material. Denying these services access to funding offers a cheap and effective, although indirect, way to prevent future infringements. While it would require existing freezing remedies to be expanded, the change is incremental and supported by sound policy arguments. These are developed in the following sections.

16.115 Asset freezing is an even more indirect mechanism than de-indexing, and simply reduces the ease with which the financial spoils of wrongdoing may be enjoyed a tortfeasor. Asset freezing has no direct technical effect on the material at all. However, in cases wherematerial is made available by a primary wrongdoer predominantly for the purpose of material gain rather than out of altruism or idealism, it may be effective to deter wrongdoing.

16.116  Jurisdictional basis. Civil Procedure Rules rule 25.1(1)(f) permits the Court to make interim orders restraining a party from dealing with any assets (whether or not situate in England). The main purpose of such orders is to prevent dissipation of assets by an actual or potential judgment debtor, thereby preserving the claimant’s ability to enforce any judgment made in his favour at trial. Like disclosure, they serve to protect the integrity of the Court’s processes by ensuring the ‘effective enforcement of its orders’.110 Because the effect of such orders can be oppressive, good reasons are needed for making them. To succeed the claimant has to show a real risk of dissipation of the assets in question.

16.117  Freezing orders against non-parties. It has long been accepted that freezing injunctions can also be made against persons against whom the claimant has no substantive cause of action. As Hoffmann LJ reasoned in Mercantile Group (Europe) AG v Aiyela, it is enough that such orders are ‘ancillary’ to a cause of action against another, primary wrongdoer.111 Steyn LJ (agreeing) observed that it ‘ought not to perplex anybody’ that such orders can be made.112 Sir Thomas Bingham MR was similarly ‘very pleased to reach that conclusion, for if jurisdiction did not exist the armoury of powers available to the court to ensure the effective enforcement of its orders would in my view be seriously deficient’.113

16.118  Elements. Before a freezing order may be made, the applicant (A) is required to show that it has a claim against B (the primary wrongdoer), which if successful would entitle A to recover assets presently held beneficially by C (the third party respondent). Relief against C would therefore be ancillary to the primary claim against B.114 In particular, it is ‘incidental to’ and ‘dependent upon’ A’s claim against B, and therefore satisfies the traditional requirement that an injunction be ancillary to a claim against a wrongdoer.115

16.119 A freezing injunction is not made on the basis that the proceeds of wrongdoing are property belonging to A (or over which C is constructive trustee).116 Nor does it presuppose any wrongdoing by C. It is simply ‘the most realistic and practical form of relief’ to preserve the claimant’s rights to enforce an in personam remedy in the event of a finding that the primary wrongdoer has committed a tort.117

16.120  Extension to internet intermediaries. Freezing injunctions against payment intermediaries would represent a further extension of this principle in two respects.

16.121Risk of dissipation. First, since the remedy is directed at disrupting a source of income derived from civil wrongdoing (and indirectly at the prevention of future such wrongdoing), it should not always be necessary to show a risk of dissipation. Of course, were it necessary to do so, then such a risk would often be demonstrable where the primary wrongdoer is anonymous and domiciled abroad. Alternatively, A could rely upon the assets being substantially derived from wrongdoing by B against A—though recent authorities suggest a causal link is unnecessary.118

16.122Recovery of a maximum sum. Second, it may be far from obvious that a claimant is entitled to recover all, or any particular amount, of money held by a payment intermediary. On current principles, the order could only be made up to the value of A’s claim against B: a so-called ‘maximum sum’ order.119 If the purpose of internet freezing orders is expanded beyond preserving an expected judgment to discourage actual and anticipated wrongdoing against third party claimants, then it may be necessary to encompass a wider class of assets, perhaps including future revenue.

16.123 Ultimately, however, the scope of a freezing order is a matter of discretion and will be framed in such a way as to be proportionate in all the circumstances. Relevant factors might include: the ease with which the online assets could be transferred; their connection to wrongdoing; the gravity and scale of wrongdoing; and the primary wrongdoer’s reputation, location, anonymity, and previous behaviour.120

16.124  Justifications for extension to payment intermediaries. In support of this extension, the Mareva jurisdiction is said to be ‘an evolving one which has to remain flexible and adaptable to meet new situations as and when they arise’.121 Section 37(1)is cast in wide terms and can accommodate an extended order by analogy with Cartier.122

16.125 Recent case law supports a flexible approach to freezing orders. In Masri v Consolidated Contractors International (UK) Ltd [No 2], Lawrence Collins LJ cited Chabra and Cardile before concluding that there was no longer any reason why the Court’s orders should be confined to existing legal property. The Court was fully prepared to extend the existing remedy of equitable execution of future debts.123

16.126 These and similar developments led the House of Lords in Fourie v Le Roux to describe the present landscape of Mareva injunctions as ‘unrecognisable’ compared to the strict jurisdictional rules observed in Great Northern Railway and The Siskina.124

16.127 Moreover, section 37(1) should be interpreted consistently with article 9(2) of the Enforcement Directive, which requires asset seizure and freezing measures where there is any danger of commercial-scale infringement going unremedied. Although the Court should rightly be cautious before making such orders against non-wrongdoers, it should not be forgotten that payment intermediaries indirectly finance and thereby make possible wrongdoing. As the past 20 years of Mareva litigation have demonstrated, it is relatively straightforward and cost-effective for payment intermediaries to disable transactions on precisely specified accounts. They are, in this sense, quintessential least cost avoiders.

16.128  Regulation of freezing orders. In Fourie, Lord Scott cautioned that freezing injunctions are ‘a draconian remedy’ and carry the potential to cause injustice. Those concerns are multiplied where the order is made in the absence of the alleged primary wrongdoer. The remedy is not proprietary and should not be sought for the collateral purpose of getting security for costs. As Lord Bingham explained, their role is protective and supplementary, and their availability should remain ‘closely regulated’.125

16.129  Merits of primary claim. Several safeguards are important to protect intermediaries and primary wrongdoers. First, like other non-facilitation remedies, the claimant must substantiate her primary claim to a high degree.

16.130  Identification of assets. Second, the claimant must identify with precision the assets alleged to belong to the primary wrongdoer, their relationship to the wrongdoing, and the effect which dissipation would have on future wrongdoing. The payment intermediary must have ‘as much certainty as possible’ about what must be done.126

16.131  Undertaking to pursue primary claim. Third, although freezing orders do not depend on an existing substantive claim, they are ancillary to such a claim and if the claimant fails to pursue it, the order may lapse or be discontinued.127

16.132  Duty of full and frank disclosure. Fourth, the claimant must inform the court and the intermediary against whom the order is made of all the facts which led to the order.128 If made without notice, all affected parties should have the opportunity to contest the order at a later inter partes hearing.

16.133  Undertaking to pay costs of freezing. Fifth, and most importantly, the claimant must undertake to pay the intermediary’s reasonable costs of identifying and freezing the assets.129 The need for additional undertakings to third parties likely to sustain damage, such as creditors, must also be considered.130 Although an undertaking is discretionary, its object should ordinarily be to ensure that an innocent intermediary ‘does not suffer in any way by having to assist and support the course of justice prescribed by the injunction’.131

16.134 In Searose Ltd v Seatrain (UK) Ltd, for example, Robert Goff J required the claimant to undertake to reimburse any banks with notice of the Mareva order for their costs of searching for and freezing the relevant accounts:

Banks are not debt-collecting agencies: they are simply, in this context, citizens who are anxious not to contravene an order made by the court, an order which has been obtained on the application of, and for the benefit of, the plaintiff.132

16.135 Similar comments apply to internet payment intermediaries, which are not responsible for the claimant’s vindication any more than offline banks. An undertaking also encourages the claimant to limit the scope of freezing sensibly.133

16.136  Other safeguards. Finally, it may be appropriate to apply other safeguards by analogy with Norwich Pharmacal disclosure and website blocking orders.134 For example, notification of the affected party, liberties to apply, and sunset clauses may be appropriate, depending on the circumstances. The imposition of these safeguards reflects the heightened risk of interference with third parties’ freedoms to carry on business.

16.137  Availability of local respondents. Expanded freezing orders have the potential to be powerful remedies for deterring large-scale commercial internet wrongdoing. First, being personal orders, the Court can act provided it has in personam jurisdiction over the payment intermediary.135 Because the largest payment intermediaries typically have a local presence, this remains possible even where wrongdoers are located abroad.

16.138  Limited impact on innocent parties. Second, as in Viagogo, such orders impose few negative consequences on non-infringers since they would be limited to payment accounts associated with substantial wrongdoing.

16.139  Support from other intermediaries. Third, many intermediaries favour greater regulation of payments. A recent Google-sponsored report concluded that ‘following the money’ is the single most effective way to address internet copyright infringement.136 PayPal recently began actively monitoring its merchants’ platforms for infringing and unlawful content.137

16.140  Prevention of unjust enrichment. Fourth, such orders are tailored to disrupt the business models of commercial infringers. Most infringing content is given away freely, in return for website operators enjoying substantial advertising revenue, upon which at least 86 per cent of file-sharing communities rely.138 Reducing that revenue reduces the extent of wrongdoers’ unfair profits, and their corresponding commercial incentive to distribute material, especially where there is a non-zero cost of bandwidth, storage, and database infrastructure. If enough revenue can be sequestered, it will eventually become financially unattractive to infringe. While non-commercial incentives to disseminate copyright material may remain, there are obvious practical limits to this kind of charitable distribution.

16.141  Examples. Recent examples support this logic. When Newzbin2 finally shuttered its doors, this was not because it was ordered to by any court, but for lack of funds. As one spokesperson commented: ‘Our servers have been unstable and crashing on a regular basis...and we don’t have the money to replace them.’139 Its English user base was decimated by the blocking orders and the company needed funding to continue indexing copyright works. Right-holders put pressure on its English payment provider, Kthxbai Ltd, which withdrew its services, leaving it with what Newzbin described as ‘no realistic means of taking money’. A freezing remedy could potentially achieve this outcome more quickly and efficiently than years of litigation over authorisation liability and blocking injunctions. Following voluntary screening measures adopted by PayPal, one BitTorrent tracker commented, ‘Unless we can figure out some realistic and possible way to do site finances completely PayPal free, it seems like the story of [the tracker website] will end very soon.140 This indicates the potential for asset freezing orders to function as powerful non-facilitation remedies.

Notes
1

See chapter 10, sections 3.2–3.4.

2

See chapter 14, section 3.

3

As to the breadth of that jurisdiction, see chapter 14, section 4.1 for discussion of the decision in Cartier International AG v British Sky Broadcasting Ltd [2014] EWHC 3354 (Ch).

4

William Dutton and Grant Blank, Next Generation Users: The Internet in Britain (2011) 22 (search engines used by 84 per cent of internet users).

5

Jeremy Waldron, ‘Dignity and Defamation: The Visibility of Hate’ (2010) 123 Harvard Law Review 1596, 1607.

6

Liron Sivan, Michael Smith, and Rahul Telang, ‘Do Search Engines Influence Media Piracy? Evidence from a Randomized Field Study’ (Unpublished paper, 12 September 2014, Carnegie Mellon University) 6–7 <http://ssrn.com/abstract=2495591>.

7

See Google Inc, ‘Controlling Crawling and Indexing’ (Google Developers, 2012) <http://developers.google.com/webmasters/control-crawl-index/>.

8

John Palfrey, ‘Local Nets on a Global Network: Filtering and the Internet Governance Problem’ (2010) (Harvard Public Law Working Paper No 10-41).

9

Joint Committee on Privacy and Injunctions, Privacy and Injunctions—First Report (2012) ch 4, [115]. The metaphor of vehicles is unfortunate, since manufacturers of sports cars are hardly liable for purchasers’ unlawful speeding.

10

Google has improved the transparency of search results, displaying a warning notice which states: ‘In response to a legal request submitted to Google, we have removed n result(s) from this page. If you wish, you may read more about the request at ChillingEffects.org.’ See, eg, Google Inc, ‘Max Mosley video—Google Search’ (3 June 2012) <http://goo.gl/OJCIx>.

11

Google Inc, ‘Report Other Legal Removal Issue’ (Help, 2012) <http://support.google.com/bin/request.py?contact_type=lr_legalother&product=websearch>.

12

Database, Google Inc, ‘Web Search Copyright Removal Data’ (2 April 2013).

13

Google Inc, ‘Transparency Report—Removal Requests’ (27 February 2016) <http://google.com/transparencyreport/removals/copyright/>. Detailed statistics for other grounds are unavailable.

14

Google Inc, ‘Keeping Personal Information out of Google’ (Help, 2012) <http://support.google.com/webmasters/bin/answer.py?hl=en&answer=164133>.

15

Google Inc, n 14.

16

See chapter 10, sections 3.4 and 3.5 for discussion of Google’s implementation of the decision and an overview of its policies for responding to data subject removal requests.

17

Google Inc, ‘My Removal Requests’ (Webmaster Tools, 2012) <http://google.com/webmasters/tools/removals>.

18

Daphne Keller (Associate General Counsel, Google Europe), Submission to Joint Committee on Privacy and Injunctions, 16 January 2012 (London).

19

Interview, Anthony House and Dorothy Chou, Policy Directors, Google Inc, 11 May 2012.

20

Google Inc, ‘Removing Content from Google’ (Help, 2012) <http://support.google.com/bin/static.py?hl=en&ts=1114905&page=ts.cs>. Different removal policies apply to AdWords keyword advertisements, which have a distinct takedown regime that is not examined in this research.

21

Google Inc, ‘Autocomplete’ (Inside Search, 2012) <http://support.google.com/websearch/bin/answer.py?hl=en&answer=106230>.

22

John Plunkett, ‘Google Executives Questioned by MPs over Privacy’ (The Guardian, 30 January 2012) <http://guardian.co.uk/media/2012/jan/30/google-executives-gilled-mps>. For example, if a user typed the words ‘Max Mosley’ in 2011, the queries ‘Max Mosley Nazi’ and ‘Max Mosley sex video’ were automatically suggested. Their results included links to tortious material.

23

Anna Leach, ‘Google Asked to Bin Autocomplete Results for Japanese Man’s Name’ (The Register, 26 March 2012) <http://theregister.co.uk/2012/03/26/google_autocomplete_japan/>.

24

Microsoft Corporation, ‘Bing Content Removal’ (2012) <http://support.discoverbing.com/eform.aspx?productKey=bingcontentremoval>.

25

Jorge Luis Borges, ‘The Analytical Language of John Wilkins’ in Eliot Weinberger (trans), The Total Library (1999) 229, 232.

26

Facebook Inc, ‘Terms of Service’ (26 April 2011) <http://facebook.com/legal/terms>.

27

Facebook Inc, ‘Reporting a Violation/Infringement of Your Rights’ (2012) <http://facebook.com/help/contact/?id=208282075858952>.

28

Facebook Inc, ‘Report an Unauthorized Photo’ (Help, 2012) <http://facebook.com/help/contact/?id=346630525351669>.

29

See Letter from Indian Premier League to Twitter Inc, ‘Re: Infringement Notification via Twitter Complaint’ (Chilling Effects, 21 May 2012) <http://chillingeffects.org/dmca512c/notice.cgi?NoticeID=374943>.

30

See Twitter Inc, ‘Twitter/Search—ipl stream’ (4 June 2012) <http://twitter.com/search/ipl%20stream>.

31

See, eg, Copyright Act s 97A; Data Protection Act 1998 s 14. See chapter 10, section 3.3; chapter 14, section 3.

32

See Senior Courts Act 1981 (UK) s 37(1); County Courts Act 1984 (UK) s 38(1).

33

Section 37 replaced s 45(1) of the Supreme Court of Judicature (Consolidation) Act 1925 (15 & 16 Geo 5 c 49), which itself replaced the Supreme Court of Judicature Act 1873 (36 & 37 Vict c 66) s 25(8).

34

Day v Brownrigg (1878) 10 Ch D 294, 307 (James LJ) (Jessel MR agreeing).

35

(1883) 11 QBD 30, 36–7.

36

Cf Common Law Procedure Act 1854 s 79 (creating statutory jurisdiction for common law injunctions).

37

See Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536, 563 (Pickford LJ).

38

See, eg, Dyson Appliances Ltd v Hoover Ltd [No 2] [2001] RPC 27 (fashioning an anti-springboarding injunction following patent infringement).

39

[2007] 1 WLR 320, [30] (Lord Scott).

40

Cartier, [104] (Arnold J).

41

Vestergaard Frandsen A/S v BestNet Europe Ltd [2010] FSR 2, 43–4 (Arnold J).

42

Norwich Pharmacal, 145 (Buckley LJ), 175 (Lord Reid); Interbrew, 457 (Sedley LJ).

43

Iveson v Harris (1802) 7 Ves Jun 251, 256–7 (Lord Eldon).

44

See chapter 13, sections 1–2.

45

See Wellesley v Duke of Beaufort (1827) 2 Russ 1, 20 (Lord Eldon); Scott v Scott [1913] AC 417, 483 (Lord Shaw).

46

See section 2; Civil Procedure Rules r 25.1(1)(f).

47

Norwich Pharmacal, 175 (Lord Reid). See also Bankers Trust Co v Shapira [1980] 1 WLR 1274, 1282 (Lord Denning MR); Aamer v The Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 3316 (Admin), [43].

48

Anton Piller KG v Manufacturing Processes [1976] Ch 55 (‘Anton Piller’). See now Civil Procedure Act 1997 (UK) s 7; Civil Procedure Rules r 25.1(h).

49

Lock International Corporation v Beswick [1989] 1 WLR 1268, 1281 (Hoffmann J).

50

See Civil Jurisdiction and Judgments Act 1982 (UK) s 25(1); Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997 (UK) [2].

51

See, eg, British Data Management plc v Boxer Commercial Removals plc [1996] 3 All ER 707 (injunction quia timet). In other contexts, see Crime and Disorder Act 1998 (UK) s 1(1) (anti-social behaviour orders), 8A(2) (parenting orders); Protection from Harassment Act 1997 (UK) s 5 (restraining orders).

52

See Attorney–General v Newspaper Publishing plc [1988] Ch 333, 375, 380 (Lloyd LJ); Attorney–General v Times Newspapers Ltd [1992] 1 AC 191, 223–4.

53

See Jockey Club v Buffham [2003] QB 642; Hutcheson v Popdog Ltd [2011] EWCA Civ 1580, [26]. While there is no authority on the point, it is open to doubt whether an accidental or inadvertent failure successfully to restrict access could be regarded as sufficiently flouting the terms of the injunction to warrant a finding of contempt.

54

In re S (a child) [2005] 1 AC 593, [23] (Lord Steyn).

55

Attorney–General’s Reference No 3 of 1999: Application by the British Broadcasting Corporation to set aside or vary a Reporting Restriction Order [2010] 1 AC 145, [52]–[57], [64]–[65] (Lord Brown) (Lord Phillips, Lord Hope, and Lord Walker agreeing). See also OPQ v BJM [2011] EWHC 1059 (QB), [18]–[26] (Eady J).

56

Siskina (Owners of Cargo Lately Laden on Board) v Distos Compania Naviera SA [1979] AC 210, 256 (Lord Diplock) (emphasis added) (‘The Siskina’).

57

(1883) 11 QBD 30, 39–40 (Cotton LJ). See also Mareva, 510 (Lord Denning MR).

58

See, eg, Rasu Maritima SA v Perusahaan Pertambangan [1978] QB 644; A J Bekhor & Co Bilton [1981] QB 923.

59

[1996] AC 284, 309 (‘Mercedez-Benz’).

60

Mercedez-Benz, 301 (Lord Mustill); cf 307–8 (Lord Nicholls) (dissenting).

61

See Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334, 341 (Lord Browne-Wilkinson) (‘Channel Tunnel’).

62

Channel Tunnel, 362 (Lord Mustill).

63

Siskina, 253 (Lord Diplock).

64

[2000] QB 775, [20] (Lord Woolf MR) (‘Broadmoor’).

65

Cartier, [103]–[104] (Arnold J).

66

[2007] 1 WLR 320, [30] (Lord Scott) (‘Fourie’).

67

Fourie v Le Roux, [32] (Lord Scott).

68

Fourie v Le Roux, [32] (Lord Scott).

69

Fourie v Le Roux, [33] (Lord Scott).

70

See Cartier, [98]–[104] (Arnold J). This point is under appeal.

71

See Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 (‘Norwich Pharmacal’). See chapter 4, section 1.1.

72

Orr v Diaper (1876) LR 4 Ch D 92 (‘Orr’). See chapter 4, section 1.2.

73

John Walker & Sons Ltd v Henry Ost & Co Ltd [1970] 1 WLR 917, 933 (Foster J) (‘John Walker’). See chapter 7, section 2.2.

74

Farina v Silverlock (1855) 1 K & J 509; 69 ER 560 (‘Silverlock’); British Telecommunications plc v One In A Million Ltd [1999] 1 WLR 903 (‘One in a Million’). See chapter 7, section 2.1.

75

Morton Norwich Products v Intercen [1978] RPC 501 (‘Intercen’). See chapter 4, section 1.1.

76

(1871) LR 12 Eq 140. See chapter 4, section 1.2.

77

Cartier International AG v British Sky Broadcasting Ltd [2014] EWHC 3354 (Ch), [106] (Arnold J) (‘Cartier’). See chapter 14, section 4.1.

78

See chapter 5, section 2.2.

79

See Case C-106/89, Marleasing SA v La Comercial Internacional de Alimentación SA [1990] ECR I-4135, 4159 (‘Marleasing’); Ghaidan v Godin-Mendoza [2004] 2 AC 557, 572 (Lord Nicholls), 585–6 (Lord Millett), 596–8 (Lord Rodger).

80

L’Oréal SA v eBay International AG [2009] EWHC 1094 (Ch); [2009] RPC 21, [453]–[454], [465] (Arnold J) (‘L’Oréal’).

81

ACTA arts 8.1, 12.1(a).

82

ACTA arts 8.1, 10.2, 12.1.

83

WXY v Gewanter [2012] EWHC 1601 (QB), [28]–[32], [67]–[71] (Slade J).

84

Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB), [34]–[36] (Eady J).

85

See Stoll v Switzerland [2007] 5 ECHR 101; Steel v United Kingdom [2005] 2 ECHR 87.

86

Douglas v Hello! Ltd [2001] 2 WLR 992, [136] (Sedley LJ).

87

Case No 12 Civ 1623 (Unreported, SDNY, 30 April 2012) 10 (Cote J).

88

Chanel Inc v Does 400–628, Case No 2:11-cv-01508-KJD-PAL (Unreported, D Nev, Dawson J, 14 November 2011).

89

[2014] BCSC 1063 (‘Equustek’).

90

Equustek, [7] (Fenlon J).

91

Equustek, [63]–[64] (Fenlon J).

92

Equustek, [70]–[105] (Fenlon J).

93

Equustek, [119] (Fenlon J).

94

Mooney v Orr (1994) 98 BCLR (2d) 318 (SC), [11] (Newbury J); Equustek, [133] (Fenlon J).

95

Equustek, [150] (Fenlon J).

96

Equustek, [137] (Fenlon J).

97

See chapter 15, section 2.2.

98

See, eg, TRIPS Agreement art 39(2).

99

Equustek, [148] (Fenlon J).

100

Equustek, [155], [159] (Fenlon J).

101

See Equustek, [162].

102

Google Inc v Equustek Solutions Inc [2015] BCCA 265, [75] (Groberman J) (‘Equustek (CA)’).

103

Equustek (CA), [80] (Groberman J).

104

Equustek (CA), [56] (Groberman J).

105

Equustek (CA), [92] (Groberman J).

106

Equustek (CA), [105] (Groberman J).

107

Societe Microsoft Corporation v L’Association des Producteurs de Cinema (Unreported, Tribunal de Grande Instance, Paris, 28 November 2013).

108

Case No 49/15.9YHLSB (Intellectual Property Court of Lisbon, Bolleiro J, 30 March 2015) pts III(13)–IV.

109

See USC Annenberg Innovation Lab, Ad Transparency Report (5 January 2013) 1.

110

Parbulk II AS v PT Humpuss Intermoda Transportasi TBK [2011] 2 CLC 988, [28] (Gloster J) (‘Parbulk II’). See also C Inc plc v L [2001] 2 Lloyd’s Rep 459, [44] (Aikens J) (‘C Inc v L’); Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, 399 (Gaudron, McHugh, Gummow, and Callinan JJ) (‘Cardile’); Camdex International Ltd v Bank of Zambia [No 2] [1997] 1 WLR 632, 636 (Sir Thomas Bingham MR); JSC BTA Bank v Solodchenko [2011] 1 WLR 888.

111

[1994] QB 366, 376 (Hoffmann LJ) (‘Mercantile Group’).

112

Mercantile Group, 377 (Steyn LJ).

113

Mercantile Group, 377 (Sir Thomas Bingham MR).

114

TSB Private Bank International SA v Chabra [1992] 1 WLR 231, 241–2 (Mummery J) (‘Chabra’); Cardile, 402–3.

115

See C Inc v L, [50] (Aikens J).

116

The claimant could not, for example, assert a constructive over assets which merely resulted from a trespass to his property rights rather than theft of actual property: Twentieth Century Fox Film Corporation v Harris [2013] EWHC 159 (Ch), [16]–[19] (Newey J).

117

Chabra, 242 (Mummery J).

118

Parbulk II, [55]–[56].

119

Z Ltd, 576 (Lord Denning), 583 (Eveleigh LJ), 589 (Kerr LJ); JSC BTA Bank v Ablyazov [2009] EWHC 3267 (Comm), [28] (Teare J).

120

White Book, [25.1.25.5].

121

Parbulk II, [39]; Chabra, 241.

122

Cf South Carolina Insurance Co v Assurantie Maatschappij ‘De Zeven Provincien’ NV [1987] AC 24, 40 (Lord Brandon) (noting that ‘although the terms of section 37(1)...are very wide, the power conferred by them has been circumscribed by judicial authority dating back many years’).

123

[2009] QB 450, 488–9 (Lord Neuberger and Ward LJ agreeing).

124

Fourie, 332–3 (Lord Scott).

125

Fourie, 334 (Lord Scott), 322–3 (Lord Bingham).

126

Z Ltd v A-Z, 575 (Lord Denning MR); Searose Ltd v Seatrain (UK) Ltd [1981] 1 WLR 894, 897 (Robert Goff J).

127

Fourie, 323 (Lord Bingham), [32]–[37] (Lord Scott).

128

Flightwise Travel Service Ltd v Gill [2003] EWHC 3082 (Ch) (Neuberger J).

129

Financial Services Authority v Sinaloa Gold plc [2011] EWCA Civ 1158.

130

Practice Direction 25A (Interim Injunctions), [5.1A].

131

Z Ltd v A-Z, 575 (Lord Denning MR), 586 (Kerr LJ).

132

[1981] 1 WLR 894, 896 (Robert Goff J) (‘Searose’). See also Prince Abdul Rahman Bin Turki Al Sudairy v Abu-Taha [1980] 1 WLR 1268, 1273 (Lord Denning MR).

133

See also Galaxia Maritima SA v Mineral Importexport (The Eleftherios) [1982] 1 WLR 539, 543 (Kerr LJ): (enjoining a port authority from exporting assets on a vessel, but requiring the claimant to compensate the authority for its lost income and administrative overheads).

134

See chapter 4, section 3.4; chapter 14, section 3.7.

135

Fourie, 333.

136

Google Inc, ‘Follow the Money to Fight Online Piracy’ (Europe Blog, 2 July 2012) <http://googlepolicyeurope.blogspot.de/2012/07/follow-money-to-fight-online-piracy.html>.

137

Cyrus Farivar, ‘PayPal Sets Down Stricter Regulations for File-Sharing Sites’ (Ars Technica, 11 July 2012) <http://arstechnica.com/business/2012/07/paypal-sets-down-stricter-regulations-for-file-sharing-sites/>.

138

Detica, The Six Business Models for Copyright Infringement (2012) 3–4.

139

TorrentFreak, ‘Newzbin2, the MPAA’s Usenet Enemy #1, Calls it Quits’ (29 November 2012) <http://torrentfreak.com/newzbin2-the-mpaas-usenet-enemy-1-calls-it-quits-121129/>.

140

See, eg, TorrentFreak, ‘PayPal Demands Invites to Private BitTorrent Trackers’ (8 January 2013) <http://torrentfreak.com/paypal-demands-invites-to-private-bittorrent-trackers-130108/>.

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