Internet Service Providers now have greater freedom to decide how to block user access to infringing content.  This follows a recent ruling of the Court of Justice of the European Union (CJEU) in the case of UPC Telekabel

In this case, Constantin Film Verleih GmbH  (Constantin) and Wega Flimproduktionsgesellschaft mbH (Wega) applied in the Austrian courts for an injunction requiring the Internet Service Provider UPC Telekabel to block access to a website which allowed users to unlawfully download films in which Constantin and Wega owned copyright.  The case was referred to the CJEU for an interpretation of the relevant law (theCopyright Directive). 

The CJEU ruled that the courts of EU member states can grant injunctions requiring ISPs, like Telekabel, to block access to websites hosting infringing content and (the new aspect of the ruling) that injunction does not have to be prescriptive. In other words, the injunction does not have to state the specific measures the ISP must take to block access. Instead, the ISP can decide what steps it will take to comply with the injunction, adopting whatever methods it considers most appropriate, taking into account all relevant circumstances. The ISP must balance the rights of copyright holders to protect their IP and the rights of users to access lawful content. It can also take into account its own rights to conduct its business freely. Merely switching a domain off may go too far. Other, more subtle, measures may be used. However, the measures chosen must not unnecessarily prevent users from accessing lawful online content and must be effective in preventing access to the infringing content, or at least make access difficult.  

IP and Technology specialist, Carlton Daniel, comments: 

This ruling will be both welcomed and disliked by ISPs. On the one hand, instead of being told what steps they must take to block access to infringing content (typically to block the domain name and IP address of the site), they now have some flexibility to use more subtle technological measures than simply switching a domain off.  This means that ISPs can take steps they consider proportionate and cost effective.  However, in practice, there are a number of limitations on this discretion.  Often, there is no middle ground between allowing access to the domain and ‘switching it off’.  Also, ISPs must ensure the measures they adopt are ‘effective’.  Arguably, ISPs are in no better position than if a court issued an injunction specifying that the domain must be blocked.  On the other hand, many  ISPs would  prefer to be subject to a specific injunction which tells than exactly what they must do rather than risk falling short of what the court requires. 

Rights-holders may be less satisfied with the ruling.  There is likely to be disagreement around the measures ISPs take to block infringing content. Where this is simply switching off access to a domain, film and music companies will be satisfied.  However, the CJEU now seems to be saying that this may, in some instances, go too far.  Therefore, a more nuanced approach by ISPs may be called for. Rights-holders may not be happy with this, especially where the majority of content on a site is shown to be infringing.  ISPs will have complied with the injunction where they have taken ‘all reasonable measures’ to prevent the infringement.  But that is not necessarily the same as all infringing content having been successfully blocked.”