Whilst obtaining blocking injunctions against internet service providers (ISPs) have become an established practice in the UK, particularly within the film and music industry, the position is less clear cut elsewhere in the EU. RPC’s David Cran and Ben Mark explore the current landscape in this area and take a critical look at the on-going fight against piracy in the EU.
Background: the UK position
Since the landmark decision Twentieth Century Fox v Newzbin in 2010, the film and music industry has taken advantage of section 97A of the Copyright, Designs and Patents Act 1988 (CDPA) in order to obtain injunctions against ISPs to block access to file sharing websites that infringe their copyright works.
Over the past five years, the English Courts have demonstrated a willingness to break new ground in order to remain effective and responsive to the continuously-evolving internet forum.
This was evident in a decision handed down in April last year, in which six Hollywood film studios brought proceedings to block access to US-based piracy application 'Popcorn Time'. This catalogue application was downloadable from a source website and enabled users to browse and locate programmes that they wished to view. This was the first time that a blocking injunction had been sought against an application as opposed to a website. It was held that the suppliers of the application were joint tortfeasors with the operators of the host website and so the English Court considered that it had jurisdiction to order an injunction.
In another landmark decision, in Richemont v BskyB, the English Courts granted a site-blocking injunction based on trade mark rights (as opposed to copyright). This was the first decision of its kind. The ISPs were ordered to block access to certain websites targeting UK customers which offered and advertised counterfeit goods bearing the well-known trade marks owned by Richemont, namely CARTIER, MONTBLANC, IWC.
Whilst the basis for the injunction was section 37(1) Senior Courts Act 1981 which provides that the Court can grant an injunction in all cases where it appears just and convenient to do so, it was noted that this provision did comply with the third sentence of Article 11 of the IP Enforcement Directive, namely that EU member states must ensure that IP rights-holders can apply for an injunction against intermediaries whose services are used by a third party to infringe an IP right. Further site-blocking injunctions based on trade mark rights may follow elsewhere in the EU.
Guidance from the Court of Justice of the EU (CJEU)
Although the CJEU had previously considered ISPs' obligations to deal with infringing content, it was not until March 2014 that it was called on to rule upon issues relating to site blocking injunctions, in the form of a reference from the Austrian Supreme Court. The proceedings, Telekabel v Constantin Film, centred on the unauthorised online availability of films and the CJEU was asked to provide guidance on the construction of Article 8(3) of the InfoSoc Directive, the form of an order against an ISP and its compatibility with EU law.
In an endorsement of the English Court's approach to site blocking cases, the CJEU confirmed that an ISP could be considered an "intermediary" within the meaning of Article 8(3), on the basis that its services were used by customers to access infringing material made available to the public on the internet by a third party. The CJEU further observed that the criteria to be fulfilled and procedures to be followed for the granting of site blocking injunctions are a matter of national law, but subject to the acknowledgment that the EU-level fundamental rights of consumers and ISPs need to be respected.
It is worth noting that the Austrian injunction regime considered by the CJEU was results based, i.e. focused on the end outcome of prohibiting access to certain sites, in contrast to the English Court's approach where injunctions commonly specify the technical method(s) the ISP must employ to comply. ISPs faced with a results based injunction will be concerned as to how they are to ensure compliance with the internet users' right to freedom of information; it will clearly be a balancing act to determine the necessary restrictions whilst ensuring lawful access to services is maintained. Some comfort may be taken from the compliance threshold which requires ISPs to show they have taken all reasonable measures and the CJEU's remark that ISPs will not be required to make "unbearable sacrifices".
Notwithstanding these concerns, rights holders will welcome the CJEU's confirmation that the use of site blocking injunctions is appropriate and also its comments on the legitimacy of the preventative role of injunctions - rights holders do not need to prove that customers are actually accessing the infringing material for an order to be granted.
The position elsewhere in the EU: the fight against Pirate Bay
The Pirate Bay site provides links to files stored on other users’ computers. The site has been blocked at ISP level in, for example, Belgium since 2011 and the UK since 2012, but users continue to access it through proxy sites.
In December 2014, Swedish Police raided Pirate Bay and seized hardware in connection with suspected copyright infringement, taking the site temporarily offline (only for it to be back up less than 3 months later). A year later, a Swedish district court reached the surprising decision that it did not have jurisdiction to order an ISP block on the site. This naturally leads to the question - if Pirate Bay, one of the world’s largest BitTorrent indexes and a spiritual home to online copyright infringement does not deserve an ISP block, what site does?
The Dutch Supreme Court provided another recent instalment in the Pirate Bay saga in November 2015, requesting a CJEU reference on whether the site can be considered to be distributing copyrighted content (and therefore warrant a site-blocking order) when it technically only facilitates access to the files.
The Netherlands’ tumultuous relationship with Pirate Bay over the past few years is well documented with overturned decisions and reinvigorated attempts to block domestic access. The CJEU’s decision on this point could have ramifications for those member states already blocking piracy sites, and the recent Popcorn Time decision could also be called into question if the CJEU answers in the negative.
Whilst recent UK decisions have paved the way for site blocking injunctions, the ongoing fight against Pirate Bay epitomises the fragmented approach to site blocking injunctions across the EU. The upcoming CJEU decision should provide guidance but the sooner member states move towards a common interpretation and enforcement of the InfoSoc Directive, the simpler it will be to ensure a cohesive approach within the EU.
Rights holders will continue to welcome any expansion of the jurisdiction of site blocking injunctions; however, whilst these measures do provide some remedy, they are relatively costly and may be only a temporary solution. The internet and streaming services are becoming more sophisticated all the time, resulting in a heavy burden on ISPs to enforce site blocking injunctions. Faced with the abundance of proxy sites and the general impossibility of permanently removing anything from the internet, it remains to be seen whether ISPs can deliver on results based injunctions or if, as Pirate Bay has shown, sites will appear transformed and resurrected in some other corner of the internet.
This article was first published in the February 2016 issue of E-Commerce Law & Policy Journal