(1) The judge was right to hold that the High Court had the power and jurisdiction to make freestanding web-blocking orders. The practice of the courts was not immutable (citing the House of Lords in Fourie v Le Roux  1 WLR 320, and the Court of Appeal’s “publicity order” in Samsung Electronics (UK) Ltd v Apple Inc  FSR 9).
(2) Obiter: had it been necessary, the Court of Appeal would have agreed with the judge that the Marleasing principle could be relied upon to construe s.37(1) so as to conform with the UK’s obligations arising under Article 11 of the Enforcement Directive.
(3) Web-blocking orders, whether under s.97A CDPA or under s.37(1) were ‘provided for by law’ for the purposes of interference with the rights of the ISPs (under Article 16 of the Charter of Fundamental Rights of the EU) or their subscribers (under Article 11 CFREU).
(4) It was conceded that the ISPs were ‘intermediaries’ in the sense intended by Article 11 of the Enforcement Directive; that the target websites were infringing the rightsholders trade marks. The Court of Appeal agreed with the judge that the target websites were using the ISPs services to infringe (which had been disputed), and that having found such, it was conceded that the ISPs had actual knowledge of such. Therefore the threshold conditions for an order were met.
(5) The principles to be applied were: Necessity; Effectiveness; Dissuasive; Not unnecessarily complicated or costly; Avoidance of barriers to legitimate trade; Fair & Equitable; and Proportionate, having regard to the rights of third-parties and other web-users. The Court of Appeal agreed that these principles had been properly applied by the judge.
(6) The majority (Kitchin & Jackson LJJ) held that the judge did not err in imposing the costs of implementing the web-blocking regime on the ISPs themselves. This, they said, was the trade-off for the immunities provided to internet society intermediaries, such as the ISPs in this case, by EU law. Briggs LJ dissented on this point, holding that the web-blocking orders were analogous to Norwich Pharmacal or Bankers’ Trust orders, whereby a claimant could obtain information or delivery-up from an innocent person mixed up in the tortious acts of a wrongdoer, but that the general rule was that the claimant should bear the costs of the process of vindicating his rights, and there was no reason to depart from that in this case.
(7) The Court of Appeal acknowledged that this was a test case, but agreed that the judge did not err in the exercise of his discretion as to the costs of the action.
The ISPs appeal was therefore dismissed on all grounds.