Injunctions in the Digital Age – one size does not fit all

28 June 2016

Sophie Eyre, Bryony Hurst

Bird & Bird & First for Disputes

Civil litigation peaks in intensity when a party applies for an urgent interim injunction. These orders provide powerful remedies to prevent impending harm to a company's reputation or assets, but for that reason are subject to strict tests and close scrutiny by the judiciary. However, as novel threats to organisations emerge in a world where businesses operate online and at lightning pace, a new trend has developed in the courts' approach. Whilst the key threshold remains, to demonstrate   that circumstances exist which render an injunction appropriate, once an applicant surmounts that hurdle, judges are proving to be open-minded and accommodating of new and creative forms of injunction. These have been used recently to combat the novel dangers of our digital world, including cyber-attacks, online fraud, unlawful content use and data theft. The English courts also seems keen to expand the ambit of traditional injunctions to help deal with both these new and more conventional threats; one way this has been achieved is to widen the definition of an asset caught by both worldwide and domestic freezing injunctions, another is to increase the scope of disclosure required by parties connected to the injunction.

In the past year we have witnessed applications for bespoke orders including:

  • Court ordered inspection and imaging of electronic devices and computers belonging to  defendants, and the subsequent destruction of any confidential information belonging to the claimant that was found - Arthur J. Gallagher Services (UK) Limited and others v Skriptchenkov and others [2016] EWHC 603
  • an injunction to prevent the respondents from using the claimant company's confidential information and intellectual property in order to prevent them from competing with it in breach of various fiduciary, contractual and/or statutory duties - Allfiled UK Ltd v Eltis & Ors [2015] EWHC 1300 (Ch)
  • a website blocking injunction requiring a number of UK Internet Service Providers to block access to websites that were selling goods that infringed trade mark rights, where no underlying action against the ultimate wrongdoer was brought - Cartier v British Telecom [2016] EWHC 339 (Ch)
  • an injunction to remove a blocking mechanism which a mobile operator had imposed to prevent its own customers from accessing certain websites over its mobile network combined with a publicity order requiring the operator to make a statement about the block on its website - Lebara Mobile Ltd & Ors v Lycamobile UK Ltd & Ors [2015] EWHC 3318 (Ch) 
  • the upholding of an injunction restraining publication of private information in circumstances where the information had, both outside of the UK and online, already been widely reported - PJS v News Group Newspapers Ltd [2016] UKSC 26
  • In Canada and Europe, orders for cessation by Google of indexing or referencing in search results containing unlawful (copyright infringement, or breach of data protection legislation) content - Equustek Solutions Inc. v. Google Inc., 2015 BCCA 265 (CanLII) and  Google Spain SL v Agencia Española de Protección de Datos, Ref. C-131/12

In addition to new forms of injunction, more well-established orders are now being used in new sets of circumstances to assist claimants with protecting their position; for example, Norwich Pharmacal orders lend themselves to the identification of cyber criminals attacking an organisation's network, and an order restraining use of confidential information against persons unknown can also be used to negotiate with less sophisticated hackers to secure the return of confidential information/trade secrets. In addition, during the past year both the Court of Appeal and Supreme Courts have used their extensive jurisdiction to firstly, widen the scope of the disclosure obligations against sophisticated defendants in granting freezing injuctions and those connected to them (JSC v Pugachev) and secondly, to extend the definition of ‘asset’ to encompass the proceeds of a loan agreement (JSC v Ablyazov) thereby widening the scope of assets caught by the traditional freezing injunction. 

The result of this claimant-led innovation is that litigation can now be won or lost at the very earliest stages – indeed; subsequent proceedings can be rendered unnecessary if a sufficiently effective remedy is successfully obtained at the outset - and the importance of mastering these applications can therefore not be overstated. Understanding what remedies might be available and how to best persuade a court to order them will therefore leave you well-placed to react quickly and effectively when the need for an urgent injunction application arises.  

In addition to changes in the form of available injunctions, the underlying law and process governing injunction applications has also evolved in recent times. A wider section of the judiciary are now able to grant these remedies, including High Court Masters and District Judges following changes to the Civil Procedure Rules last year, and the Competition Appeal Tribunal  following the introduction of the Consumer Rights Act 2015. The recognised methods of service of injunctions has also expanded, with the Courts now having recognised valid service via Facebook, Twitter and, most recently, Instagram. The geographical boundaries of certain types of injunction continue to grow, and the penalties for failure to comply with an order appear to be heavier as courts increasingly show willingness to impose criminal sentences for contempt. 

What this means for you?

We will be exploring the issues outlined above in greater detail at our DR Essentials Breakfast Briefing on 6 July 2016. At this session, Sophie Eyre and Bryony Hurst will discuss some of the more innovative uses of injunctions in the UK and Europe (including the recent cases set out above) and whether there is scope for pushing the boundaries even further. They will also review the common procedural issues which need to be tackled when making an injunction application, cover recent changes to procedure, and will suggest practical approaches to the service and enforcement of injunctions so as to ensure maximum value once such orders are obtained.

Previous Dispute Resolution Essentials briefings: