Tuesday, November 1, 2011

European Cases on Ordering ISPs to Block Certain Websites


In the last few months, Huťko noticed exponential rise of the cases that demanded access providers to render certain infringing websites inaccessible to its subscribers. The legal basis is usually national counterpart of the Art. 8(3) of the InfoSoc directive, which provides that "Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right." as most of them are copyright cases. For other IPRs however, Art. 11 of Enforcement directive is available [see also cases L´Oréal v. eBay C-324/09Frisdranken Industrie Winters C-119/10].

  • Britain [July: Newzbin 2 aka Twentieth Century Fox et al v BT [2011] EWHC 1981 (Ch)] see comments by Lilian Edwards and coverage by IRIS and Francis Davey; High Court ordered BT to block access to a site which aggregates a large amount of illegally copied material found on Usenet discussion forums. The court said that the order wasn't disproportionate and did not infringe Art. 10 ECHR. It also held that such order is perfect in conformity with art. 15 of eCommerce Directive (so called 'no-monitoring obligation'). Blocking was to be implemented via BT’s “Cleanfeed” technology.
  • Netherlands [July: BREIN vs Ziggo/XS4All]. Amsterdam court rejected the claim to impose on access provider Ziggo a blockage of access to the Pirate Bay website for all it’s subscribers. Good account of the case is provided by Martine Wubben, who writes that "the Amsterdam judge found it necessary yet insufficiently established that the vast majority of Ziggo subscribers are infringing BREIN members’ copyrights via TPB. Secondly, the judge found that an alternative, less restrictive solution is possible, namely starting individual civil procedures against Ziggo’s infringing subscribers.".
  • Germany [August: LG Köln, case no. 28 O 362/10]. IRIS reports that "The LG Köln decided that the ISP was neither liable nor obliged to take precautionary measures by blocking access. In order to take such measures, the ISP would need to control data communication among its customers, through which it would obtain information about the circumstances of the telecommunications, including their content. The creation of corresponding filters and blocking mechanisms without a legal basis was incompatible with the principle of telecommunications secrecy enshrined in Article 10(1) and (2) of the Grundgesetz (Basic Law). In addition, the measures demanded by the plaintiffs were unreasonable because the ISP would have to take numerous technical precautions in the form of data filters, which would have to be constantly adapted to changing circumstances and new forms of infringement." 
  • Belgium [September: Antwerp Court of Appeal]. Kluwer Copyright Blog reports that in Belgium Anti-piracy Federation filed a cease and desist action against two ISPs, in order to make them block The Pirate Bay’s websites. Antwerp Court of Appeal granted such blockage arguing that blockage measure is in conformity with Art. 15 of eCommerce Directive and it does not contravene 'mere conduit' safe harbor. Phillipe Laurent from Research Center on IT and Law says that "According to the Court, even though this measure could be more easily circumvented, DNS-blocking is the most acceptable solution, as IP-blocking would be more burdensome to the ISPs and could have more detrimental effects on third parties.".
  • Finland [October: Helsinki District Court]. Futureofcopyright.com shares note on a decision of Helsinki District Court, which ordered Finnish ISP to block subscribers’ access to the Pirate Bay. It says that "The ISP has to block the domain names and IP-addresses used by the Pirate Bay servers before November 18, or otherwise faces a 100,000-euro fine."
  • Italy [March 2010: Supreme Court]. The Italian Supreme Court granted blockage of the Pirate Bay website. It even stated that all ISPs in the country should do so. Comments by ZeroPaid here.
  • Denmark [May 2010: Supreme Court]. The Danish Supreme Court held that local access provider Telenor has to block all the access to the Pirate Bay website via the DNS-block. Comments by TorrentFreak here.
  • Ireland was reported by futureofcopyright.com to have a similar case. I couldn't find the details nevertheless. 

Huťko is very curious about the outcome of Scarlet Extended C-70/10 in this regard, as this might shed some more light also on the blockage practice. In Scarlet Extended, Advocate General argues that imposing the filtering technology is not sufficiently “prescribed by law” a required by Art. 7, 8, 11 of the Charter. Huťko believes that Art. 8(3) of the InfoSoc directive and Art. 12(3) of the eCommerce directive are quite clear that such injunction are possible. It is however questionable whether as measure conflicting with the right to private life (Art. 7 Charter), right to protection of personal data (Art. 8 Charter) and right to freedom of expression and information (Art. 11 Charter) is proportional and foreseen by the law.

PS: Huťko wonders why AG's opinion in Scarlet Extended is available in all possible languages including Maltese, but still not in English or German. Anybody knows?

1 comment:

CM said...

Thanks to your inventory, I have been able to include the German case you mentioned in a paper I just published!

This paper is on the Scarlet case, and the other case brought by SABAM before the EUCJ.
I have no pointer to an English version of the AG opinion, but you may learn more on the case reading my paper at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1954760