Injunctions Against Innocent Third Parties: Case of Website Blocking

Abstract

The paper discusses a phenomenon of injunctions against innocent third parties (in a tort law sense). One type of such injunctions, website blocking, is currently appearing in a spotlight around various European jurisdictions as a consequence of the implementation of Art. 8(3) of the Information Society Directive and Art. 11 of the Enforcement Directive. Website blocking injunctions are in this paper used only as a plastic and perhaps also canonical example of the paradigmatic shift we are facing. The shift from tort law centric injunctions to in rem injunctions. Author of this paper maintains that the theoretical framework for latter injunctions is not in the law of civil wrongs, but in an old Roman law concept of so called 'in rem actions' (actio in rem negatoria). Thus the term in rem injunctions is coined to describe this concept of injunctions. Besides the theoretical foundations, the paper explains how system of injunctions against innocent parties fits into the private law regulation of negative externalities of on-line technology and also what are expected dangers of derailing injunctions from the tracks of the tort law. The important question of the justification of an extension of the intellectual property entitlements by in rem paradigm, it's limits or other solutions to it however, which is author's PhD project, is left out from the paper.

Keywords: injunctions, injunctions against innocent third parties, website blocking, intellectual property, enforcement, Internet