On 3 October 2011, the Court of Appeal of Antwerp issued a judgment in cease-anddesist proceedings between a non-profit association established by Belgian video manufacturers, the Belgian Anti-Piracy Federation (“BAF”), and the internet service providers Telenet and Belgacom. BAF based its claim on Article 87 §1, par. 2 of the Copyright Act which provides that a court can issue a cease-and-desist order against internet intermediaries if its services are used by third parties for actions in violation of copyright.
The Court of Appeal rescinded the decision of the Court of First Instance of July 2010 (see our ICT Law Newsletter No. 39 of November 2010) which found that immediate interim measures to block the website The Pirate Bay were not strictly necessary and that BAF’s claim was disproportionate, especially since the website has been active for many years without the BAF having initiated any legal proceedings in the past.
First, contrary to the opinion of Belgacom and Telenet, the Court of Appeal found that there was no need to defer the judgment until the European Court of Justice would rule on the question whether a measure ordering an internet service provider to install a system for filtering and blocking electronic communications in order to protect intellectual property rights infringes fundamental rights (see our ICT Law Newsletters No. 37 of March 2010 on the Scarlet case and No. 39 of November 2010 on the Netlog case) since in this case BAF only requested the Court to order removal of the website The Pirate Bay.
In addition, Belgacom and Telenet argued that a cease-and-desist order would impose a general monitoring obligation, whereas, according to Article 21 §1 of the Belgian E-Commerce Act, such obligation is prohibited. The Court of Appeal, however, considered that a duty that could be fulfilled by a one-off technical change, such as to disable routing of a particular Internet Protocol address, does not involve monitoring. In the current case, the Court of Appeal has ordered Belgacom and Telenet to implement, under penalty of a daily fine of EUR 1,000 within 14 days after the notification of the judgment, a Domain Name System (DNS) blocking measure, i.e. changing the ISP service that translates domain names (e.g. www.example. com) into IP addresses (e.g. 22.214.171.124). At the same time, the Court acknowledged that circumvention is technically possible but in this particular case Belgacom and Telenet will not be held liable for any users who would circumvent this technique. (NRO)
The case can be found on http://www.juridat.be