Advocate-General Cruz Villalón has issued his opinion in case C-314/12 UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH regarding whether injunctions issued against ISPs requiring them to block access to certain web sites containing infringing content are compatible with EU law, specifically the Information Society Directive, Enforcement Directive, E-Commerce Directive, and fundamental rights enshrined in the European Union treaties.
This case, which was referred by the Austrian Supreme Court, concerned the kino.to website which made copies of films available for streaming and downloading, without the permission of the copyright holders. Upon an action by copyright holders, the Handelsgericht (Commercial Court) initially issued an order requiring UPC Telekabel, a major Austrian ISP, to prevent its users accessing the kino.to site, in particular by employing domain DNS and IP address blocking, although it acknowledged that these measures could be easily circumvented. The Oberlandesgericht Wien (Court of Appeal) changed the terms of the order to a more general one requiring the restriction of access to the site but without setting out the specific measures to be taken – these were to be decided by the ISP, who was required to take all reasonable and possible steps. UPC challenged both the general and more specific site-blocking orders, claiming that (1) a general injunction would be impossible to fulfil as all blocking measures can be circumvented, and (2) the more specific measures of DNS and IP address blocking were not proportionate: they would be costly yet ineffective, would require UPC to regularly check whether the infringing content was still available, and IP address blocking would affect other, legitimate, sites sharing the same IP address. Finally, it would "open the floodgates" to a multitude of demands on all ISPs by rightsholders.
The AG made the following findings:
- Under Art 8(3) Information Society Directive, injunctions can be issued against ISPs of users of a site which contains infringing content. An infringer is still considered to use the services of an ISP of a user of that site, notwithstanding that there is no contractual relationship between the infringer and the ISP. Such injunctions may seek "not only to stop the abuse already made but also to prevent further damage" and are not precluded by the mere conduit defence available to ISPs under Art. 12 (3) of the E-Commerce Directive.
- It is NOT consistent with EU law to issue an injunction against an ISP which requires it in general terms and without setting out the specific measures to be taken, to prevent customers accessing a website, which all or a substantial part of the content has not been authorised by the copyright owner. This is the case even where it is possible for the ISP to avoid penalties for non-compliance by showing that it took all reasonable steps to comply. There is a scale of measure which can be taken to block or restrict access to a website, and an order in general terms would put ISPs in the potentially conflicting position of deciding whether to take less stringent measures and risk non-compliance with the order, or more stringent measures contrary to the interests of its customers.
- It IS consistent with the balance of rights to require an ISP to take concrete steps to make it harder for its customers to access a website containing illegal content, even if these measures require significant resources and can easily be circumvented without specific technical knowledge.
Ultimately, when determining the proportionality of site-blocking orders of this kind, the factors to be taken into account are: (1) Does the injunction have a lawful purpose i.e. the protection of IP rights? (2) Will it achieve what it sets out to do? (3) Does it go beyond what is necessary to achieve the objective?, and (4) Are the disadvantages of the measure disproportionate to the aims pursued? Furthermore, the AG's opinion makes it clear that, although the InfoSoc Directive, Enforcement Directive and Treaty on the Functioning of the European Union impose a number of overriding limitations on the terms of site-blocking injunctions, the specific terms and conditions of such orders are for the national court to decide.
There is currently no official English version of the opinion. The CJEU's ruling is expected early 2014.
In the UK there have been five cases to date in which Arnold J has issued such so-called site-blocking injunctions against major ISPs under s.97A CDPA 1988, requiring them to block access to websites either hosting or streaming content without authorisation from the rightsholders. Judgment in the most recent one, Paramount v BSkyB, concerning two sites offering films available for streaming and downloading, was delivered a mere two weeks before the AG's opinion and is discussed below. The terms of the orders made in the first two rulings issued by Arnold J (concerning the Newzbin 2 and The Pirate Bay sites) set out the specific measures to be taken by the ISPs and which systems, such as Cleanfeed, Hawkeye etc, will constitute compliance with the terms of the order. To the extent that orders granted contain similarly specific provisions, and as acknowledged by Arnold J in the EMI v BSkyB case, they may be considered proportionate along the lines of the AG's reasoning. Certainly, the balancing exercise carried out by Arnold J in these cases raised the same factors identified by the AG, namely cost, complexity, and specificity of terms.
In a further unreported ruling in June 2013, Mann J granted a similar order in relation to the TV torrent site EZTV and movie torrent site YIFY-Torrents, upon an action which appears to have been brought by the Federation Against Copyright Theft ("FACT"). Subsequent press reports have noted that EZTV has taken action to allow users to bypass the blockades.
What is certain is that the music and movie industries are increasingly turning to site-blocking injunctions as a key weapon in the fight against online piracy. Further orders of this nature are anticipated in the UK, and there have been further recent developments in this field on the continent. Prior to the AG's opinion, the Belgian Supreme Court has upheld an order granted in the content of criminal proceedings, requiring all Belgian operators and ISPs, to block access to the content hosted by a server linked to the root domain name thepiratebay.org (yes, that one again!). The order required the ISPs to use all possible technical means, including at least blocking all domain names which redirect to that server. The list of domain names to be blocked was to be determined by the regional police and the Belgian Federal Computer Crime Unit (FCCU). In rejecting a challenge to the order by three ISPs, the Supreme Court stated that the order "which specifies which technical process must be used" does not constitute a general monitoring obligation contrary to Art. 15(1) of the E-Commerce Directive. Unfortunately, the Court ultimately refused to refer the issue to the CJEU for a preliminary ruling and so it remains to be seen whether the CJEU would consider that measures along these lines meet the requirement of proportionality.