Sky blocks Newzbin, important legal and technical questions need answering

Clive D.W. Feather clive at
Thu Dec 15 16:43:35 GMT 2011

James Firth said:
> On point (1), Sky could be forgiven for rolling over easily.  BT were hit by
> a potentially massive costs ruling.

But, as I read the final judgement, the costs were for unsuccessfully
appealing the original decision on the order, not for fighting the order in
the first place. They were given their costs for doing that so that the
issues could be examined by the court. Furthermore, my reading of the final
decision that ISPs were *expected* to fight such orders rather than nod
them through.

Ah, here we are. Paragraph 53:

"In my judgment, the starting point is that, even though the Studios are
enforcing their legal rights, including their right to an injunction under
Article 8(3), the rather unusual nature of the remedy under Article 8(3)
means that it was reasonable for BT to require the matter to be scrutinised
by the court. BT was entitled to a court order for its own protection, and
it was reasonable for BT to require the Studios to adduce sufficient
evidence to establish both that the court had jurisdiction to make the
order and that it was appropriate in the exercise of the court's discretion
to do so. Accordingly, I consider that the costs of the application down to
16 December 2010 should be borne by the Studios."

So it seems to me that Sky should have opposed the application for an order
and asked for their costs in doing so. Furthermore, if it was expensive for
them to do the blocking, they could ask for the cost of implementation:

32: "the cost to BT ''would be modest and proportionate''"

33: "I do not rule out the possibility that in another case the applicant
may be ordered to pay some or all of the costs of implementation,"

Clive D.W. Feather          | If you lie to the compiler,
Email: clive at     | it will get its revenge.
Web:  |   - Henry Spencer
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