In an opinion rendered on 26 November 2013, the Advocate General confirmed, in effect, a ruling rendered by the Belgian Court of Cassation on 22 October 2013. According to Advocate General Cruz Villalón, an internet service provider (ISP) can be required to block access to copyright-infringing websites (CJEU, C-314/12, UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH und Wega Filmproduktionsgesellschaft GmbH).

The context

During a judicial investigation of unidentified persons for violations of IP rights and anti-piracy legislation, the examining magistrate issued an order requiring all Belgian ISPs to block access to content hosted on a server linked to the domain name “thepiratebay.org“, using all technical means at their disposal, or at least to block all domain names referring to the server linked to “thepiratebay.org“.

The question submitted to the Court was whether such an injunction constitutes a monitoring obligation within the meaning of Article 15(1) of Directive 2000/31/EC (the e-Commerce Directive) or Article 21(1) of the Belgian Act of 11 March 2003 on certain legal aspects of information society services (the "e-Commerce Act").

The decision

The Court of Cassation dismissed the claim.

The Court found that the injunction, which indicated a main domain name and, moreover, the technical procedure to be used to block access to the infringing content, did not constitute a monitoring obligation within the meaning of Article 15(1) of the e-Commerce Directive or Article 21(1) of the e-Commerce Act.

According to the Court, such an order does not require ISPs to monitor the information being transmitted or stored or to actively look for indications of illegal activities.

In a similar case before the Court of Justice, Advocate General Cruz Villalón reached the same conclusion. Nevertheless, the Advocate General indicated that an ISP's right to block access to certain content should be subject to a number of limitations.

According to the Advocate General, it would be incompatible with the fundamental rights of the parties to allow ISPs to block access to all potentially infringing websites. However, a specific measure aimed at an identified website is not, in principle, disproportionate. It is up to the national courts to weigh the fundamental rights of the parties and strike a fair balance between their interests.