Introduction

Today, the Court of Appeal of The Hague, the Netherlands, rendered an important judgment on the obligations of internet service providers ("ISPs") vis-à-vis the entertainment industry. The district court previously ordered certain ISPs to block access to the website The Pirate Bay. The Court of Appeal, however, has now held that they are not required to do so.

In 2012 BREIN, a litigation vehicle representing the entertainment industry, obtained a court order against (inter alia) ISP Ziggo, requiring it to block access to The Pirate Bay, a website that provides a platform on which users can share movie and music files. Ziggo filed an appeal.

The judgment of the Court of Appeal

Today the Court of Appeal ruled that Ziggo cannot be required to block access to The Pirate Bay.

In its most important findings the Court of Appeal held that the blocking measures are apparently being circumvented on a large scale. The measures are therefore not effective and violate the freedom of entrepreneurship.

It follows from the research submitted to the court that blocking access to The Pirate Bay has not led to a significant decrease in the number of copyright infringements. Because the blocking measures do not contribute to the achievement of their intended purpose, the Court of Appeal concluded that they violate the proportionality principle. The violation of the freedom of entrepreneurship - the freedom to act at one's discretion -, that goes hand in hand with the blocking measures is consequently unjustified. Furthermore, it was considered important that the ISPs do not themselves infringe any copyrights.