Tuesday, November 26, 2013

AG: Website Blocking Is Compatible With The Union Law

Advocate General Pedro Cruz Villalón just published his opinion in UPC Telekabel Wien C‑314/12 case. He concludes that in principle website blocking is permissible injunction against an innocent intermediary. Because the opinion is not yet available in English, I summarize below only some points, that I found to be the most important:

  • § 59: the operators of allegedly infringing websites also "use" the services of an Internet access provider in a sense of Art. 8(3) InfoSoc & Art. 11 EnforD [in other words, you don't have to look for infringing conduct of ISP's customers, which might be problematic to establish for instance in cases of streaming. British courts interpret the Directives this way for some time already];
  • § 52: the safe harbors do not apply to injunctions [for most of you, I guess, this sounds probably obvious and settled. But in German literature there are still some scholars claiming the opposite];
  • § 78: website blocking injunctions do not conflict with prohibition of general monitoring obligation of Art. 15 of eCommerce Directive [but when reading AG's definition of a general monitoring obligation, one wonders to what extent is the recent German case law compatible with the Union law. I will follow up on this soon];
  • § 90: the website blocking injunction may not be imposed in a form of some general prohibition, but must be always instrument-specific [German Federal Supreme Court might reconsider its approach of leaving the concrete measure for the execution proceedings];
  • § 82: AG did not consider human rights of website operators, whose website are being blocked (e.g. their right to a fair trail);
  • § 91 - 109: AG also did not consider proportionality of exact technical measures, but left it to the national courts;
  • § 100: the sole fact that a website blocking measure is easily circumventable does not necessarily lead to its general rejection [AG mentions that quantitative analysis can be of a guidance to the courts];
  • § 106: the national courts should keep in mind also overall consequences of the website blocking becoming a standard praxis;
  • § 107: as a matter of proportionality, the right owner should, if possible, first pursue a case against a website operator or* his provider [undoubtedly, one of the most important remarks of the opinion]
  • § 105: AG accepts the reading of Sabam and Scarlet Extended, according to which general no-monitoring obligation is also a matter of proportionate interference with the right to conduct business. This means that by power of the human rights it also applies where Art. 15 eCommerce Directive does not.

I will follow-up with some excerpts when the opinion will be translated into English. See also:
* Thanks to Graham Smith for spotting the alternative language.

2 comments:

Austrotrabant said...

Hi Martin,

From the view of Austrian internet industry the whole thing could indeed have been worse and the opinion also has its upsides (freedom of speech, no general prohibition but instrument-specific).

I am however very sceptical about the (ex post) proportionality test as such a test could only be carried out by a court once an ISP has been willing to fight this matter in court (again). Big providers may do so, but for the 400+ small and mid size access ISPs this poses quite a challenge. And knowing the rights holders it won't take them long to unleash an avalanche of Cease and Desists notices...

I was however surprised about the Austrian position (65) in this case and wonder if this reflects the opinion of all the whole government...

Best!

Maximilian
[a.k.a. Austrotrabant]

Huťko said...

Dear Maximilian,

thanks for you comment. I completely agree on that point. It is overall very problematic that safe-guards are basically shifted to attitude of ISPs, whose business incentives might be often conflicting with defending the rights of their users. Small ISP having to defend far-fetched website blocks, is just one of those examples. Defending anonymity of users in case of disclosure requests, another.

But I was wondering. How does the industry see the problem of costs that are associated with this kind of practice. Is there a fear that this might make Internet access more expensive?

Best Wishes,
Martin