An internet service provider can be required by court injunction to block access for its customers to a website which infringes copyright, Advocate General Cruz Villalón recently confirmed. Such an injunction must, however, refer to specific blocking measures and achieve the right balance between all interests involved.

EU law obliges member states to ensure that copyright holders can apply for an injunction against those intermediaries whose services are used by a third party to infringe copyright. An injunction is a court order by which an individual is required to perform, or is restrained from performing, a particular act. In previous jurisprudence, the Court of Justice of the European Union already confirmed that internet service providers and the operators of social networking platforms can be considered to be intermediaries.

Proceedings were filed before the Austrian courts in relation to a legal dispute between a major Austrian internet provider and Constantin Film and Wega, the holder of copyright in films. On application by the latter, the Austrian courts granted an interim injunction prohibiting the internet service provider from allowing its customers to access a particular website called kino.to. By accessing this website, users were able to stream or download films, the rights of which are held by Constantin Film and Wega, without the consent of the latter. The internet service provider had no legal relationship with the operators of the website and made neither internet access nor storage space available to them.

Any innocent service provider, with no links whatsoever to the operator of an illegal website, (could) be roped into legal proceedings filed by a copyright holder

The Austrian Supreme Court made a preliminary reference to the Court of Justice of the European Union seeking guidance as to whether a provider which provides internet access to users of an illegal website is to be regarded as an intermediary even though no services of his are utilised by the operator of the illegal website as such. In such cases, the Austrian court requested confirmation as to whether an injunction could also be obtained in relation to such internet service provider.

The Advocate General took the view that the internet service provider of the user of a website which infringes copyright is to be regarded as an intermediary whose services are used by a third party, that is the operator of the website, to infringe copyright. This means that an injunction can also be issued against such a provider.

However, the Advocate General also noted that the fundamental rights of the parties had to be weighed against each other. He observed that it was not proportionate to prohibit an internet service provider generally, and without ordering specific measures, from allowing its customers to access a particular website that infringes copyright. A balance had to be found in such cases since the internet service provider of the user has no connection with the operators of the website that infringes copyright and has not itself infringed copyright.

The Advocate General noted that a specific blocking measure imposed on an internet service provider relating to a specific website was, however, proportionate. This is so because the measure involved does not entail considerable costs but can easily be implemented without any special technical knowledge.

Furthermore, the Advocate General asserted that such a service provider can also avoid incurring a penalty for breach of the injunction by showing that it has taken all reasonable steps to comply with the prohibition.

It is for the national courts, in each particular case, to weigh the fundamental rights of the parties against each other and thus strike a fair balance between such rights. When weighing such rights, the Attorney General observed, account had to be taken that in the future, action could be taken in numerous similar cases against any service provider before the national courts. Advocate General Cruz Villalón also pointed out that right holders must, in so far as possible, claim directly against the operators of the illegal website or their internet service providers.

The implications of such legal reasoning are indeed far reaching. It opens the door wide open for any innocent service provider, with no links whatsoever to the operator of an illegal website, to be roped into legal proceedings filed by a copyright holder in order to protect his rights. However, now, one has to await the judgment of the Court of Justice of the European Union in order to see whether it adopts the same reasoning as that of the Advocate General with all its practical implications.

mariosa@vellacardona.com

Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.

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