Out-Law News 3 min. read

General blocking orders to discourage copyright infringing content allowed but ISPs can choose how to comply, rules CJEU

Internet service providers (ISPs) can be forced to block customers' access to copyright-infringing websites but have an element of freedom to select how they achieve that outcome, the EU's highest court has ruled.

The Court of Justice of the EU (CJEU) said that rights holders can pursue court injunctions against ISPs in an effort to tackle online copyright infringement.

The injunctions do not have to be specific and it can be left up to ISPs to decide how they comply with them, so long as the measures deployed do not "unnecessarily deprive internet users of the possibility of lawfully accessing the information available" and are at least difficult to circumvent and seriously discourage internet users from accessing the unlawful content, the Court ruled.

Expert in intellectual property law dispute resolution Gillian Anderson of Pinsent Masons, the law firm behind Out-Law.com, said that the ruling offered vague guidance to ISPs about precisely which measures are reasonable to deploy when complying with a court order to block access to websites.

"This leaves ISPs in the position of not knowing if what they do will be enough to help them avoid breaching the injunction," Anderson said. "Equally, if they adopt an overzealous approach in an attempt to be 'safe rather than sorry' then they face the potential challenge of customers claiming that their rights are being infringed."

Anderson added that varying resources available to individual ISPs would give different interpretations to what the reasonable measures each of those businesses could deploy when complying with a blocking injunction. The effect could be that a patchwork of different approaches could emerge "which might ultimately mean that the objective of preventing and stopping infringement is not fulfilled".

The CJEU was ruling in a case referred to it from Austria where two film production companies have been seeking a court injunction against an ISP which would require the ISP to block customers' access to a website that makes illegal copies of the rights holders' films available to the public.

A court in Austria previously ruled that the ISP, UPC Telekabel, had to block its customers' access to the website but that it was free to select how to do so. However, UPC Telekabel appealed to Austria's Supreme Court challenging the obligation imposed on it and argued that the blocking measures that it could deploy could all be circumvented and that some were "excessively costly" to implement.

In response to a question raised by the Austrian Supreme Court, the CJEU ruled that ISPs can be required to take action to tackle online copyright infringement.

It said this is because EU copyright laws confirm that those uploading infringing content to the internet make use of services provided by ISPs to reach consumers. As a result, ISPs can be classed as 'intermediaries' and held responsible, under those laws, for adhering to injunctions issued by courts for combating copyright infringement, the CJEU ruled.

The Austrian Supreme Court also asked the CJEU to determine whether fundamental EU rights are properly balanced in banning ISPs from placing a general, unspecific, restriction on customers' accessing copyright infringing websites if ISPs can "avoid incurring coercive penalties for breach of the prohibition by showing that it had nevertheless taken all reasonable measures?" The CJEU ruled that an appropriate balance can be struck.

"The fundamental rights recognised by EU law must be interpreted as not precluding a court injunction prohibiting an internet service provider from allowing its customers access to a website placing protected subject-matter online without the agreement of the rightholders when that injunction does not specify the measures which that access provider must take and when that access provider can avoid incurring coercive penalties for breach of that injunction by showing that it has taken all reasonable measures," the CJEU said.

"[This is on the basis that] (i) the measures taken do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available and (ii) that those measures have the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging internet users who are using the services of the addressee of that injunction from accessing the subject-matter that has been made available to them in breach of the intellectual property right, that being a matter for the national authorities and courts to establish," it said.

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