EU High Court’s Advocate General Suggests ISP Blocking Orders Are Lawful with Some Restrictions

An Advocate General with the European Court of Justice (ECJ) recently issued an opinion that courts may order Internet Service Providers to block access to copyright infringing websites under European law. The non-binding but highly influential opinion says that ISPs can be required to block access to a website infringing copyright if the injunctions identify specific blocking measures and otherwise appropriately balance opposing fundamental rights of the copyright holders, the ISP’s economic interests, and the importance of Internet access in a democratic society.

The legality of blocking orders against ISPs was referred to the ECJ by the Austrian Supreme Court in connection with the proceedings in the Kino.to case. Kino.to was an online platform – which closed its operations in June 2011 – where users could download or view in streaming movies without the consent of rightsholders. Two such rightholders sued UPC Telekabel Wien (UPC), a major Austrian internet provider, in Austrian court, seeking an order forcing UPC to block access to Kino.to. UPC made neither internet access nor storage space available to the operators of the kino.to website, but UPC users could access that site, as with any other on the Internet.

In May 2011, the Austrian lower court ordered UPC to block the domain DNS and the present and future IP numbers of kino.to. The appellate court amended the first decision by ordering UPC to block access to the infringing site without specifying any concrete measure to be adopted. According to the appellate ruling, UPC allowed access to content unlawfully made available to the public, and was therefore liable, regardless of whether UPC’s users infringed copyright themselves or UPC had any contractual relationship with the operators of infringing website. Therefore, it was UPC’s responsibility to identify and implement any reasonable measures to achieve the result of impeding copyright infringement. This general obligation of achieving a specific result implied, in the appellate court’s view, that indicating specific blocking measures was unnecessary. In other words, UPC’s future secondary liability for infringement  would turn on a future court’s assessment of the reasonableness of its blocking measures.  

On further appeal, the Austrian Supreme Court suspended the proceedings and referred relevant questions to the ECJ regarding the interpretation of Article 8(3) of the Information Society Directive. The Supreme Court asked:

• whether it is “compatible with Union law, in particular with the necessary balance between the parties’ fundamental rights, to quite simply prohibit an access provider from allowing its customers access to a certain website (without ordering specific measures) as long as the material available on that website is provided exclusively or predominantly without the right­holder’s consent, if the access provider can avoid incurring preventive penalties for breach of the prohibition by showing that it had nevertheless taken all reasonable measures”; 
• if no, whether “it is compatible with Union law, in particular with the necessary balance between the parties’ fundamental rights, to require an access provider to take specific measures to make it more difficult for its customers to access a website containing material that is made available unlawfully if those measures require not inconsiderable costs and can easily be circumvented without any special technical knowledge”.

The recently-issued ECJ Advocate General opinion is not binding on the ECJ but will strongly influence its final decision.

Preliminary, the Advocate General noted that an ISP whose services are used by a third party to infringe copyright may be subject to an injunction to prevent further infringement. The Advocate General applies literally the wording of Article 8(3) of the InfoSoc Directive providing that “Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.” In construing the meaning of this provision, the Advocate General concludes that “also the services of an access provider of the Internet users [of a website which infringes copyright] are used by the infringers [the operators of that website] to violate copyright, regardless from the fact that the infringer has a contractual relationship with the access provider.”

Next, the Advocate General wrote that the identification of specific measures is a minimum requirement for the proportionality of a blocking order. A general obligation cannot be imposed upon the ISP under current European law because that would be incompatible with an appropriate balance of the fundamental rights of the parties. The fundamental right to be balanced is the ISP’s economic freedom, which is curtailed by a blocking order limiting the ISPs commercial provision of access to the Internet.

Finally, the Advocate General opined that, in principle, a specific blocking measure imposed on a provider is not disproportionate just because it entails considerable cost and can be easily circumvented without any special technical knowledge. However, “it is for the national courts, in the particular case, taking into account all relevant circumstances, to weigh the fundamental rights of the parties against each other and thus strike a fair balance between those fundamental rights.” In this respect, the Advocate General seems to suggest that national courts should consider blocking orders against ISPs only after the rightsholders “take action directly, if possible, first against the operators of the infringing website or their service providers.”  Balancing is especially important here, the Advocate General wrote, in light of the ISPs’ role of facilitating access to and circulation of information in a modern democratic society.

If the ECJ endorses the Advocate General’s view, some national judges may conclude that web-blocking, under specific circumstances, is an excessive and inadequate measure. But the issue will be decided on a case by case basis because of the balancing required. 

We will keep you updated on how the ECJ will answer the preliminary questions posed by Austrian Supreme Court and provide a binding decision on how interests must be balanced by national courts. For now, the opinion of the Advocate General would require the ECJ – and national courts when they will be invested of similar matters – to take into adequate consideration the necessity of balancing the rights of intellectual property owners with other fundamental rights, such as freedom of expression, freedom to access information, and freedom of undertaking economic activities. Moreover, the ruling says general blocking orders are not proportionate under European law, only those identifying specific blocking measures. Thus, the arrangement endorsed by the Advocate General, which limits the liability of intermediaries to those measures identified in advance by a judicial review, appears to reduce ISP legal uncertainty and make potentially overbroad blocking measures less likely.

Photo Credit: Gwenaël Piaser