[murraypaul]

As considered by the judge:

193. Mr Hutty’s opinion in summary is that users of Newzbin2 would be able to, and would, circumvent the blocking. Mr Clark’s opinion in summary is that, while some users would do this, others would not. Counsel for BT submitted that Mr Hutty’s opinion was to be preferred, because Mr Hutty took into account the level of technical expertise required by users to download infringing content using Newbzin2. Mr Hutty’s opinion is that the level of technical expertise required to circumvent the blocking is little greater. In my judgment Mr Hutty makes a valid point that, in considering the likely efficacy of the order, it is material to consider the technical expertise of those affected by it. Furthermore, his assessment of the comparative level of technical expertise required to use Newzbin2 and to circumvent the blocking appears reasonable. Nevertheless, I am not persuaded that it follows that the order would be ineffective, for the following reasons.

194. First, it seems likely that circumvention will require many users to acquire additional expertise beyond that they presently possess. Even assuming that they all have the ability to acquire such expertise, it does not follow that they will all wish to expend the time and effort required.

195. Secondly, evidence filed by the Studios suggests that circumvention measures are likely to lead to slower performance and lower quality downloads, at least unless users are prepared to pay for a certain service provided by a different provider. Again, it is not necessarily the case that all users will be prepared to do this. This is not merely a question of money: there is also a potential security issue with using such services.

196. Thirdly, it is important not to overlook the question of economics. As I have explained above, Newzbin2 members have to pay a subscription to use it to access content. They will also need to have a Usenet service. For the reasons Mr Hutty himself explains, they will commonly need to use a paid service. Thus they are not getting infringing content for free even as matters stand. If, in addition to paying for (a) a Usenet service and (b) Newzbin2, the users have to pay for (c) an additional service for circumvention purposes, then the cost differential between using Newzbin2 and using a lawful service (such as a DVD rental service) will narrow still further. This is particularly true for less active users. The smaller the cost differential, the more likely it is that at least some users will be prepared to pay a little extra to obtain material from a legitimate service.

197. Fourthly, I agree with counsel for the Studios that the words of Kenneth Parker J in R (on the application of British Telecommunications plc) v Secretary of State 20C Fox v BT Business, Innovation and Skills [2011] EWHC 1021 (Admin) at [232] are equally applicable here:

As it happens, the Studios’ evidence is that when a similar kind of order was made by an Italian court blocking access to the Pirate Bay, use of the site appears to have been markedly reduced. It is fair to observe that, as BT’s evidence points out, diverted traffic may not have been picked up by the monitoring results relied on; but there is no hard evidence of a substantial quantity of diverted traffic.

198. Finally, I agree with counsel for the Studios that the order would be justified even if it only prevented access to Newzbin2 by a minority of users.