On Thursday 4 February, Olswang hosted a cross-disciplinary seminar, chaired by High Court judge, Mr Justice Birss, on the changing face of injunctions in the age of the internet and mass data.
With contributions from experts in intellectual property, digital litigation, commercial litigation and employment law, the discussion covered a range of new developments, with Mr Justice Birss emphasising the importance of lawyers from different disciplines sharing knowledge and experience in relation to injunctions.
Mr Justice Birss considered that the Unified Patent Court, while significant in itself, could be a herald of much bigger changes; it could be the beginning of a harmonisation of civil law throughout the EU, and could one day lead to “a court in France granting an Anton Piller order over property in England… Someone in Sheffield could be imprisoned for disobeying the order of a French court”.
For IP lawyers, blocking orders have become an increasingly frequent method of tackling IP infringements online and placing the burden on the service provider to amend the wrongs of an (often anonymous) third party. Priya Nagpal, a barrister and Olswang director specialising in intellectual property litigation, stated, “Once a successful blocking order is made, the ISPs typically pick up the costs of implementation – although whether the rights holder should contribute to these costs is still a live issue.”
Much of IP law is “now dictated by Brussels”. Key legal battlegrounds for the future are likely to be who is caught by the term ‘intermediary’ and how far intermediary liability should extend. The European Commission recently seemed to suggest, in its Digital Single Market Strategy Communication Paper, that intermediaries should be under a general duty of care in the way they manage their networks and systems, which goes against precedent to date (at least in intellectual property law). It remains to be seen how far this will extend, but shows clear parallels with the increasing obligation on service providers to remove content, such as the Google Spain ‘right to be forgotten’ case.
Ashley Hurst, an Olswang partner specialising in media and internet disputes, noted that decisions such as Cartier had implications which reached further than the intellectual property courts. It established that an injunction can be obtained against an ISP, where the main action is against an entirely different party. In privacy, confidentiality or data protection cases, a cause of action against ‘persons unknown’ can also be used to obtain injunctions against intermediaries such as ISPs.
Ashley considered that injunctions against ‘persons unknown’ can be used to encourage an unknown offender to come forward, in circumstances such as a sensitive data breach where the priorities are to recover the information and minimise publicity. Injunctions can now be served via almost any means – not only by email but also through Facebook, Twitter, or other social media, meaning that anonymous offenders can be served before they are identified. An injunction (with the attendant threat of imprisonment for contempt of court) can be accompanied by an offer to cover the defendant’s legal costs if they agree to come forward, return the stolen data and sign a confidentiality agreement. This “carrot and stick” approach can be a highly effective way for a company to take action against an individual offender.
Olswang partner Catherine Taylor gave an employment law perspective. Employers are increasingly likely to have contracts with clients obliging them to recover stolen or leaked data. Employment law has been rapidly developing in this area, and the courts have been “increasingly inventive” in creating remedies to meet this need; although electronic data is not considered to be “property”, the court can still use their inherent jurisdiction to order measures such as computer imaging (to ensure evidence is not dissipated or destroyed). Notably, it is “almost impossible” for an employee to argue that they were justified in stealing data because it is required for a claim against their employer.
Finally, Jeremy Mash, an Olswang partner specialising in commercial litigation considered the contempt threat arising from breaching the terms of an injunction. He said that the threat of being held in contempt of court “really does focus the minds” of individuals who find themselves respondents. He noted that committal for contempt is increasingly being used by claimants as a tool to enforce compliance. The sentences being handed down for contempt appear to be heavier than in the past; this is perhaps due to defendants proving more willing to simply flout court orders but equally perhaps due to the courts showing greater willingness to impose such sentences.
A defendant cannot be extradited for being in contempt, but any person involved in litigation in the UK is likely to have some desire to come into the jurisdiction, and so even against an international defendant contempt can be a useful tool. However, attempting to get a committal order is a “major venture”, requiring proof to the criminal standard of beyond reasonable doubt and a heavy investment of time and cost. Sports Direct’s recent attempt to imprison David King, the chairman of Rangers FC, for breach of an injunction was a cautionary example where the application was found to be unnecessarily heavy-handed and an abuse of the committal procedure.
Mr Justice Birss said that in other European jurisdictions the penalty for breach of an injunction was often only a specified monetary sum, meaning that it was a much more viable option than in the UK for those constrained by injunctions to breach their terms. Indeed, he noted that civil judges in other European countries often regarded the penalties for contempt in the UK as excessive.