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.
The Attorney General of the Court of Justice Cruz Villalón has rendered an opinion regarding the compatibility of web-blocking measures with EU law (here the press release). This opinion is expected to warm-up the never-ending debate how to tackle piracy in the internet. In fact, in several European countries web-blocking is imposed on ISPs (Internet access providers) as an ordinary measure to prevent illicit activities by Internet users in different areas, such as online piracy, paedoporno material, counterfeiting, consumer protection, ecc.
While various European decisions have already considered the matter of online copyright enforcement (in particular, the famous SABAM cases originating from Belgium), this is the first time the ECJ is dealing specifically with web-blocking.
It is arguable whether the opinion of the Attorney General may be seen as a step in favor of copyright holders or, by contrast, in favor ISP/libertarians/consumers. Such evaluation may vary because web-blocking practices throughout UE vary considerably from country to country and therefore the views of the Attorney General, should they be confirmed by the ECJ, may have different implications.
On one side, rights-holders will welcome the fact that opinion recognizes that the web-blocking instrument is not per se incompatible with European law. On the other side, however, the opinion lists series of restrictions and guarantees suggesting that courts or authorities should be very cautious when considering the practical implementation of this measure. In other words, the solution indicated by the Attorney General will create concerns in those countries (for instance Germany and Austria) were web-blocking is not normally used, but it will have the opposite effect in countries where web-blocking is common practice (such as Italy and UK). In the latter countries the current web-blocking practice and jurisprudence should be likely revised.
The merits of the case concerned a web-blocking measure ordered by an Austrian judge upon local ISPs (including the cable operator UPC) in order to prevent access to a portal (kino.to) accused to distribute content in violation of copyright law. The Austrian judge imposed a combination of DNS and IP addresses blocks, while recognizing that such measures could be easily circumvented by users. UPC challenged the blocking measure and the case was brought to the attention of the European court to verify whether the Austrian legislation, allowing a national courts to block access to website as a measure to prevent infringement of copyright, was compatible with European law (namely the Copyright Directive 2001/29/EC and the Electronic Commerce Directive 2003/31/EC).
Firstly, the European Attorney is suggesting to the ECJ that access providers should be considered as “intermediaries” and, as such, could be subject to the relevant legislation in the matter of fights against online piracy. Secondly, he believes that, under certain conditions, European law allows – but it does not prescribe – national courts to force ISPs to block access to websites to prevent online piracy. However, the practical recourse to this measure should be subject to various caveat and therefore the national judge should take care of the following:
– the blocking measure must be balanced and take into account primary interests of other parties, such as fundamental rights, freedom of expressions, privacy, non-monitoring obligation, freedom of business ecc, which may even restrict and limit the actual enforcement of copyright law. As a consequence of that, national judges may even come to the conclusion that, in the concrete circumstances, web-blocking is an excessive and inadequate measure. The respect of privacy, in this context, will become particularly critical. EDPS (the European Data Protection Supervisor) has recently noted that network management practices, including blocking measures, should be balanced and proportionate also with regard to privacy; one should even wonder whether a blocking measure based on DPI (deep packet inspection) may be tolerated;
– the blocking measure must be specific and it cannot consist in the obligation to generically prevent access to a certain website. This is particularly relevant in countries like Italy where judges are used to impose web-blocking measures as a kind of “result obligation”, i.e. ISPs are obliged to prevent access to the locked website at all costs and conditions;
– the measure must be proportionate, i.e. should not prescribe more than what is necessary to achieve a certain objective. This is particularly relevant for cases where blocking of a website would impede access to both licit an illicit content (frequently with social networks and platforms);
– the blocking measure must be imposed by a court or should be subject to strict judicial review.
As stated above, the conditions envisaged by the Attorney General are quite strict and, if approved by the European court, will force various members States to review their tolerance to web-blocking. Nevertheless, some parts of the conclusion seem to help the recourse to web-blocking:
– even if web-blocking may be easily circumvented, such measure remains adequate in the eyes of the Attorney General. It is interesting to whether this evaluation will be finally retained by the European court;
– web-blocking may be imposed even if involve some costs upon ISPs. However, since the ECJ in previous cases (Sabam cases) have banned costly measures imposed on operators to protect third parties’ rights, it will be interesting to see how the final decision will elaborate this question.
The final decision of the ECJ is expected by the end of 2014.
The European Commission is soon to deliver an opinion about a proposal of Italian regulator AGCOM regarding the enforcement of copyright rules in the Internet. The proposed measures were notified to Brussels in September and the standstill period is due to expire on December 3, 2013. However, the content and the tenor of the Commission’s opinion will be decisive for the success of the proposed reform. Fact is, a similar legislative initiative aborted in 2011 following a very negative opinion of the Commission’s offices.
If the initiative of AGCOM goes through, it will create an important precedent in Europe, since the enforcement of copyright in the Internet is normally carried out by courts, not by administrations.
ISPs, consumers, libertarians and experts have vigourosly contested AGCOM’s proposal because it could affect freedom of speech as well as business rights. In particular, they challenge the modality whereby the Italian regulator would supervise and tackle copyright infringements in the Internet by way of orders of removal and blocking. By contrast, rightshodlers associations as well as the Italian Collecting Society SIAE have supported the initiative.
Remarkably, the matter has overcome the natural boundaries of a stakeholders debate and has become a subject for discussion at very high institutional levels. Various members of the Italian Parliament (including the president of the Chamber Laura Boldrini) have questioned the competence of AGCOM in regulating this matter and observed that only the legislator, not the regulator, should fix limits and guarantees of civil freedoms. The Foreign Affairs Minister Emma Bonino has also criticized the regulator’s initiative. Lastly, a mediatic bomb came from Frank La Rue, UN special rapporteur for protection and promotion of freedom of opinion and expression. The UN officers, during a series of meeting in Italy in mid-November, declared in a report the following:
“The issue of intellectual property in the context of freedom of expression has been raised in more than one meetiing in the course of my visit. All regulations governing constitutional rights, especially if they relate to freedom of expression, should be approved by the Parliament. As an independent authority, the NRA has the sole responsibility to apply the provisions in force provided by the law. It is only for this reason that the NRA has the power to adopt their own administrative regulations.
One reason for concern is the role of AGCOM in the definition of sanctions in intellectual property, because this is a prerogative of the Parliament. Even if the NRA can apply by virtue of law certain restrictions to online content, the removal of an online content should however be established by the court in each case”
In the following meeting with journalist, Mr. La Rue expressly stated that the reform envisaged by AGCOM may be against the Italian Constitutional Chart.
The proposal of AGCOM has been notified to the European Commission in compliance with Directive 98/34.
Here a summary of the controversial AGCOM draft decision:
The draft regulation numbers 19 Articles, divided into five Chapters, and two Annexes.
Chapter I gives the definitions used (art. 1) and the regulation’s purpose and scope of application (art. 2). It is specified that the new rules will not apply to downloaders and peer-to-peer programmes.
Chapter II lists the measures (art. 3) taken by the Authority to encourage the development, promotion and awareness of digital works, and establishes a committee (art. 4) to develop and protect the legal offer of digital works, under which scope possible self-regulatory solutions may be discussed with the aim to support the development of digital works.
Chapter III regulates the procedure aimed at ascertaining and eliminating breaches of copyright or connected rights occurring on electronic communication networks in compliance with the national decree implementing Directive 70/2003/EC on electronic commerce, namely Legislative Decree of April 9, 2003 n. 70.
The envisaged procedure works in two stages:
– firstly, if a self-regulatory procedure of notice & take down has been duly put in place by the web site manager (i.e. it has been previously notified to the Authority), the claimant shall notify the latter asking for the removal of the illicit content following that procedure (art. 6);
– in the absence of a self-regulatory procedure, or when the illicit content is not removed in any case, then the claimant may notify the Authority about the infringement (art. 7).
The start of the process with the Authority is notified to the claimant, the uploader and the website manager (if traceable), and to service providers specifically identified in the claim (art. 8). The parties may file counterclaims. In case the recipient spontaneously makes, within 3 days from the communication, the necessary adjustments, the proceeding can be dismissed.
The proceeding with the Authority may last up to 45 days. If, upon completion of the proceedings, the Authority ascertains that a breach has been effectively committed, it shall order the concerned service provider to either selectively remove the illicit content or to disable access to it (i.e. web-blocking). While taking the decision, the Authority shall take into account the principles of graduality and proportionality, the gravity of the violation as well as the localisation of the server (art. 9). Compliance to the Authority’s decision must be ensured within 3 days.
A shorten procedure is envisaged by the draft regulation for massive violations (art. 10).
Chapter IV (arts 11-15) provides for similar procedures aimed at ascertaining and eliminating breaches of copyright or connected rights with regard to audiovisual and radio programmes pursuant to Directive 44/2010/EC on audiovisual media services.
Chapter V contains final provisions and, inter alia, a clause reserving to the Authority the right to amend the regulation.
Annexes 1 and 2 are the “Application Forms” to be compulsory used to notify the Authority respectively in accordance with Art. 7, paragraph 2 (digital works) and Art. 12, paragraph 1 (audiovisual or radio programmes).
A case of web-blocking occurred in Italy is re-opening the discussion about what should be done in order to fight efficiently and definively child-pornography in the Internet.
Yesterday 14 February 2013 the Italian police imposed the block of the domain name 25.media.tumblr.com, an archive used for images uploaded on a blogging platform. The decision was taken because of the likely existence of paedo-pornographic content on the website. In Italy there is a specific police agency, the so-called CNCPO (National Centre for the Fight against Online Pedopornography) managing a black list of websites which are deemed to host pedopornographic material. Normally, when the Italian police finds such illicit content in the web, the suspected website is added to the list and ISPs are immediately notified to block access to the related domain. The police agency operates straight on the basis of evidences, without previous court authorisation, however subsequent jurisdictional review is always admitted.
In the case at stake, it is clear that the blocking measure had overreaching effects, because access has been denied to any kind of content existing on the platform. People holding or looking for licit content got into troubles and did not have a clear and manageable procedure to disable the block. Even now, while writing the present post and people are discussing in the Internet how to circumvent the block, it is not clear yet whether the block has been finally resolved.
This event, and the related confusion caused in the Italian market, seems to be an interesting opportunity for a general re-thinking of the overall matter.
Child-pornography is an horrible crime and when occurring in the Internet shall be addressed via effective and secure repressive measures. In this respect, European ISPs have been longly claiming that website-blocking is not an appropriate instrument, because it can be easily circumvented through specific technologies available in the market at cheap prices. In other words, web-blocking does not work with respect to people seriosuly committed to watch and exchange paedo-pornographic content (i.e. paedophiles and other criminals), while it may works for people accidentally and unintentionally falling onto such material (children, teachers, families and so on). In addition, web-blocking involve collateral and problematic damages, such as blocking access to licit content uploaded in the same website.
The only effective way to fight child pornography in the Internet consists in removing illicit content at the source, i.e. deleting the original files hosted in the servers. Such measure permits to definitively destroy paedo-pornographic content in the web and also to get closer to the criminals making use or profit of it. In comparison to that, web-blocking is just like putting the garbage under the carpet.
And so, why police and many politicians, in Italy but also abroad, insist so much with web-blocking rather than hosting removal?
Web-blocking appears to be an easy solution for the police, because it consists in just sending (normally via fax) an order to the ISPs to block access to a website. Politicians claim to have taken measures against an horrible phenomenon. Citizens and electors may have the perception that the problem has been finally solved, because the paedo-pornographic content apparently disappeared. However and unfortunately, such horrible content is still online and accessible, as explained above.
To sum up, only content removal works effectively, however it requires better organization, because, in case the illicit content is hosted abroad, policies and authorities of different countries must be able to cooperate promptly and effectively. Statistics show that paedopornographic content is mostly hosted within the EU or in the US, therefore improved international cooperation is needed and should be possible.
The recent European Directive 2011/92/EU of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography reflects the suggested approach. Pursuant to its article 25(1), Member States shall take the necessary measures to ensure the prompt removal of web pages containing or disseminating child pornography hosted in their territory and to endeavour to obtain the removal of such pages hosted outside of their territory.
In addition to that, as a faculty and not as an obligation (article 25(2) Member States may also enforce web-blocking, subject however to a number of safeguards.
Directive 2011/92/EU must be transposed into national law by Member States, including Italy, by the end of 2013.
Beside Italy, fight against child pornography in the Internet is addressed in major European countries in various means.
In France a recent legislation (so-called Loppsi law of February 2011)requires ISPs to block access, immediately and without a court order, to sites included on a blacklist set up by an ad hoc agency. Notably, since 2008 ISPs were committed, by way of a voluntarily agreement, to block websites containing paedophile content (and other illicit material such as content related to terrorism and racial hatred).
In United Kingdom the solution is similar, however it is managed by way of self-regulation. A private body, the Internet Watch Foundation, runs a child sexual abuse blacklist on the basis of which ISPs block access to those websites (on a voluntary basis).
In Germany the measures to be taken consist in content removal, since the 2010 law on combating child pornography (focussing on website blocking) was repealed in 2011.
Also in Spain the repression against paedo-pornographic content consists in hosting removal. There were initiatives, in the Parliament and also in the public opinion, to address the problem also via other means, however to time no further legislation has been adopted.