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162. The effect of an internet blocking order, or the
cumulative effect of such orders against ISPs which share most
of the relevant market, is therefore to hinder the wrongdoers
from pursuing their infringing sales on the internet, without them
ever being named or joined as defendants in the proceedings or
otherwise given a procedural opportunity to advance any defence,
other than by way of liberty to apply to vary or discharge the
order: see again per Arnold J at para 262.
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163. Although therefore internet blocking orders are not in
form injunctions against persons unknown, they do in substance
share many of the supposedly objectionable features of
newcomer injunctions, if viewed from the perspective of those
(the infringers) whose wrongdoings are in substance sought to
be restrained. They are, quoad the wrongdoers, made without
notice. They are not granted to hold the ring pending joinder of
the wrongdoers and a subsequent interim hearing on notice, still
less a trial. The proceedings in which they are made are, albeit
in a sense indirectly, a form of enforcement of rights which are
not seriously in dispute, rather than a means of dispute resolution.
They have the effect, when made against the ISPs who control
almost the whole market, of preventing the infringers carrying
on their business from any location in the world on the primary
digital platform through which they seek to market their
infringing goods. The infringers whose activities are impeded by
the injunctions are usually beyond the territorial jurisdiction of
the English court. Indeed that is a principal justification for the
grant of an injunction against the ISPs.
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164. Viewed in that way, internet blocking orders are in
substance more of a precedent or jumping-off point for the
development of newcomer injunctions than might at first sight
appear. They demonstrate the imaginative way in which equity
has provided an effective remedy for the protection and
enforcement of civil rights, where conventional means of
proceeding against the wrongdoers are impracticable or
ineffective, where the objective of protecting the integrity or
effectiveness of related court process is absent, and where the
risk of injustice of a without notice order as against alleged
wrongdoers is regarded as sufficiently met by the preservation
of liberty to them to apply to have the order discharged.”
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98.
Although the injunction is not an internet blocking order as
such and does not name the IPOs as defendants, most of the principles
discussed by the Supreme Court are apposite.
The evidence before us
shows how in light of the way the criminal acts in connection with the Song
are conducted on the internet by various unidentifiable persons, it is
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