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:
- blog post by Graham Smith,
- blog post by Hans Peter Lehofer.
- my paper on this issue: Injunctions against Innocent Third Parties: The Case of Website Blocking.