The Blocking Injunction : A Critical Review of Its Implementation in the United Kingdom, within the Legal Framework of the European Union

This article critically evaluates the manner in which the blocking injunction has been implemented in the United Kingdom, the legal basis for which is derived from the legal framework of the European Union. Unlike the extrajudicial and privatised Notice and Takedown (“N&T”) process, the blocking injunction is a court-supervised mechanism and, hence, avoids the key criticism levelled against N&T. Yet, there are problems with the blocking injunction, in particular the manner in which it is implemented. This article first demonstrates that, unlike in the context of copyright enforcement, the legal basis for the blocking injunction in the field of trademark protection is suspect. Secondly, the article posits that the procedure pertaining to the grant of a blocking injunction runs counter to the principles of natural justice – in that neither the relevant EU directives, nor their domestic implementations, provide for the target website operators (i.e. the authors of online content), whose content is sought to be blocked, to be notified of, or joined in, the proceedings where injunctions are sought. As such, it is argued that an important safeguard that has been incorporated into blocking orders, which allows affected parties to apply for a variation or vacation of a blocking order, is rendered meaningless. Lastly, the article identifies four areas – i.e. circumvention, multiplicity of proceedings, barriers to legitimate trade and costs of implementation – where there might be problems in the future that may question the efficacy of this remedy