Blocking injunctions and collateral damage

This article explores the problem of collateral damage that blocking measures give rise to. In awarding injunctions against internet service providers (ISPs), courts in the UK and some of the other EU, as well as Nordic, states have preferred to require ISPs to implement Domain Name Service (DNS) blocking, as opposed to blocking of Internet Protocol (IP) addresses, in cases where the target website that infringes an intellectual property right shares its IP address with other legitimate websites. This is to avoid the problem of collateral damage associated with IP blocking in such situations. Yet, as this article points out, DNS blocking could also give rise to a different form of collateral damage that must be equally avoided. In the circumstances, courts may be left with the single option of adopting URL blocking, which, although it is highly accurate and entails no collateral damage, could easily be circumvented without any cost being incurred. It is therefore argued that the EU’s injunctive framework for the enforcement of intellectual property rights ought to be utilised in innovative ways in order to target other categories of online intermediaries, including hosts. This would not only transform the injunctive remedy into a more holistic one, but also avoids ISPs being overburdened as a result of having to implement blocking measures.