The Court of Justice of the European Union (CJEU) has ruled that ISPs must take all reasonable measures to block access to a website containing infringing material.
ISPs are liable as intermediaries and are left to interpret what steps would constitute reasonable measures. Cost and risk implications may result in ISPs needing to be more vigilant in monitoring violations of IP rights.
Right holders benefit from a higher level of protection, but will not have the ability to dictate the extent or form of the blocking.
Guidance from the CJEU was that measures used to implement an injunction must be sufficiently effective to ensure genuine protection, must prevent unauthorised access to the protected material or have the effect of making it difficult to achieve, and seriously discourage internet users from accessing the content.
The court stressed the importance of balancing IP rights, the freedom to conduct a business and the freedom of information of internet users. Measures used to block a website must therefore be strictly targeted.
The referral came from an Austrian case: an application by IP right holders Constantin and Wega to order UPC (an ISP) to block the access of its customers to a website making available to the public, for either download or streaming, some of their films without their consent.
The Austrian courts held that, by providing its customers with access to content illegally placed online, UPC was an intermediary whose services were used to infringe the film producers’ IP rights. The CJEU approved the Austrian form of injunction.