Court of Justice of the European Union has finally determined the limits under which national courts can require ISPs (Internet access providers) to block access to websites in order to prevent or impede copyright infringements. The decision of the Court (Judgment in Case C‑314/12 UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbHis of February 27, 2014) is not surprising, because the relevant European directives allow implicitly such kind of national interventions in order to repress piracy. However, today’s decision is very important because for the first time the European court has set forth some mandatory principles that national courts must comply with when ordering ISPs to block access to websites for copyright protection purposes.
According to the European Court, when national courts impose a web-blocking measure against an ISP for copyright reasons, they must guarantee a fair balance balance between the protection of copyright, on one side, and other rights which are protected under European law, such as:
1. the (ISP’s) freedom to conduct business and;
2. the fundamental rights of citizens.
The freedom to conduct business
In this context, freedom to conduct business means whether in ISP should support costs and charge of any kind in order to help right-holders to achieve their objective (namely the “isolation” of the illicit content). The question arise because ISP are mere intermediaries and, as recognized by the court itself, are not liable for the illicit behaviors of pirates. Why and how much should an ISP pay for that? The European court already addressed this problem in a previous cases (particularly the Sabam-Scarlet decision concerning Internet filtering) ruling – in general terms – that ISPs are not working for the benefit of right-holders, they run a different business. Therefore, they should not be required to carry on expensive investments and activity on behalf of third parties.
In the present case of web-blocking, the European court says that the ISP can choose to put in place measures which are best adapted to the resources and abilities available to him and which are compatible with the other obligations and challenges which he will encounter in the exercise of his activity. In order words, the ISP cannot be obliged to bear significant costs, or deploy investments having considerable impact on the organisation of his activities or require difficult and complex technical solutions. It will be for the national judge to examine whether the involvement of the ISP is, in terms of costs and assistance, justified and proportionated.
In addition, the ISP must have the possibility to show and prove that he has taken all reasonable measures in order to avoid liability. In other words, ISPs cannot be deemed responsible if the blocking measures are circumvented and users continue to access pirated content through the blocked website, since technology provides several instruments for this purpose. A national judge cannot therefore pretend that an ISP guarantees that a blocking measure will be effective: “ad impossibilia nemo tenetur”. According to European Court “That possibility of exoneration clearly has the effect that the addressee of the injunction will not be required to make unbearable sacrifices, which seems justified in particular in the light of the fact that he is not the author of the infringement of the fundamental right of intellectual property which has led to the adoption of the injunction”.
The above limitation is particularly relevant in those countries where the judges require the iSP to have an “active role” in blocking website, for instance by monitoring whether the illicit it website migrates in order to escape the blocking measures.
The fundamental rights
In the mentioned Sabam-Scarlet case, the European court had stated that piracy repression in the Internet must be balanced with fundamental rights of individuals, such as piracy, freedom to speech, freedom to information ecc.
In the present case, the European court recalls that web-blocking measures do not have to “unnecessarily deprive” (sic) users of the possibility of lawfully accessing the information available in the Internet. In other words, such measures must be “strictly targeted”, in the sense that they must serve to stop copyright infringement but without thereby affecting internet users who are using the provider’s services in order to lawfully access information. Otherwise, according to the court “the [ISP]’s interference in the freedom of information of those users would be unjustified in the light of the objective pursued“.
In theory, this principle is clear and acceptable when we are dealing with a website or a platform which is entirely and maliciously intended to commercialized pirated content. However, the reality look a bit different, because illicit content is frequently available on websites and social platforms which users access for licit purposes. In this respect, the European court seems superficial about the social and business reality, and unaware of the technological implications of its decision.
Blocking the access to a specific content or page, in the context of a larger website or platform, it is no so technically easy. The capacity to target a specific content is normal in the case of content removal, i.e. Notice and Take Down, when the removal is carried on by the social platform or by the manager of the website. By contrast, a selective web-block is not easy from the point of view of Internet access: in this case, the problem is blocking the Internet traffic to a specific page/URL or whatever (which will continue to exist, since it is not removed). Some ISP could say that this operation is not possible from technological point of view or it is too costly, and in such a case they would claim exoneration (as seen above). Thus, this is a bug of the European sentence which will cause controversies in front of national judges and maybe a new preliminary ruling by the same court of Luxembourg.
Is web-blocking an effective remedy?
Interestingly, the European court has recognized the web-blocking is not an effective remedy in order to “isolate” illicit websites: “it is possible that a means of putting a complete end to the infringements of the intellectual property right does not exist or is not in practice achievable, as a result of which some measures taken might be capable of being circumvented in one way or another“. However, the court finds that even though the measures taken when implementing an injunction are not capable of leading, in some circumstances, to a complete cessation of the infringements of the intellectual property right, they cannot however be considered to be incompatible with EU law and therefore can be adopted in any case.
Nevertheless, the above can be claimed by ISP to avoid liability in case the infringements continue.
The present European decision will be perceived in different ways by the industry. Rights-holders will welcome the confirmation that web-blocking for copyright protection is possible under European law, but they will be less happy that a series of condition have been fixed. The European court leaves some discretion to national courts about the implementation in the concete circumstances. This means that in the European States where web-blocking is already largely applied (Italy for instance), this European decision may create a reason to moderate such practice. Conversely, in countries where web-blocking is not familiar, such as Germany and Austria for instance, this decision may encourage national court to start to intervene upon request of right holders.
Regarding the facts: the litigation arose in Austria where some rightholders, Constantin Film Verleih Wega Filmproduktionsgesellschaft, became aware that their films could be viewed or even downloaded from the website “kino.to” without their consent. At the request of those two companies, the Austrian courts prohibited UPC Telekabel Wien, an Austrian ISP from providing its customers with access to that site. UPC Telekabel appealed the injunction.