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Friday, 28 March 2014

Website blocking in copyright injunctions: a further perspective

Readers may remember Pekka Savola (@PekkaSavola, Legal Counsel at CSC-Scientific Computing Ltd and a researcher at University of Helsinki, Finland), for it was Pekka who authored a guest post on this weblog last month, "Hyperlinks, making available and the 'new public' -- or just a dead end?" (here).  Well, we're pleased to offer our readers another guest post by Pekka, this time on yesterday's ruling in Case C-314/12 UPC Telekabel Wien (noted briefly here on the 1709 Blog, and discussed in greater depth on the IPKat by Eleonora, here). This is what Pekka has to say:
Website blocking in copyright injunctions: a further perspective

Copyright and related right-holders have sought court orders to block access to websites facilitating copyright infringement. The targets of these orders have typically been major internet connectivity providers (ISPs) at the user end. The most prominent example has been The Pirate Bay, which has been blocked in six EU/EEA states (Italy, Denmark, UK, Finland, Ireland, and Belgium); in some others blocking requests have been rejected or are being prepared.

In its 27 March 2014 judgment in UPC Telekabel Wien (C-314/12) the CJEU held, in essence, that blocking by the user end ISP is possible (ie. a contractual relationship to the infringing website is not needed) and that the court does not need to specify the exact technical means the ISP must use to implement blocking. The former was expected, whereas the latter was in some ways somewhat surprising.

Unconditional right to request blocking by any intermediary?

No contractual relationship to the website or evidence of an ISP's customers actually using the infringing website was deemed necessary. The latter implies the unnecessary nature of some countries' (e.g. UK) national provisions on proving infringement and notifying the ISP.

The former was expected. However, it is unfortunate that the CJEU did not address the point raised by the Advocate General that “subsidiarity” might have implications on proportionality of orders. The AG had suggested that the right-holder should primarily target the website or the website's ISP. This issue has also come up in various national proceedings.

Recital 59 of Directive 2001/29 states that in many cases the intermediary is best placed to stop or prevent infringement. This implies that it is not always best placed, and some degree of subsidiarity may be called for. Some national courts have however noted that this is not required by Article 8(3). Clarification on this would also have been beneficial.

Complications of generic blocking orders

The Advocate General had suggested that a blocking order which does not specify the means is not acceptable. It would undermine legal certainty for the ISP and it would be impossible to evaluate the proportionality of such order, given that the properties of different techniques vary significantly. He had however accepted that a specific blocking order may be proportionate. This was reasonable.

The CJEU held that a generic blocking order was compatible with EU law. It did not specifically rule out specific blocking orders if national courts wanted to issue such, though it did point out that the ISP should be able to choose the means. The court seemed to partially miss the point that ISP's typically want specific conditions to be stated. This ruling will likely increase the tendency of the courts to issue orders similar to what was previously done in the UK. There the ISP was given discretion how to implement the order, but for the benefit of doubt, the court explicitly stated an implementation that at least would fulfill the obligation.

The CJEU needed to soften its position with several constraints. Two of them are both important and somewhat surprising.

1.      Legal certainty requires that the ISP must be able to get a court decision on whether the measures are sufficient once the implementation measures are known and before penalties are decided. The implication is that the ISP can change the measures if the court were to find them wanting. Effectively this seems to undermine the purpose of generic order and transform it to a court-sanctioned specific order. This also has an interesting temporal and res judicata implication. If an approved measure turns out to be ineffective, the ISP would not need to change it except through a new court order. Courts may thus be wary of the terms of acceptance.

2.      Because a generic order could violate the fundamental rights of the ISP's users, national procedural rules must provide a possibility for internet users to assert their rights before the court once the implementing measures are known. This seems to provide locus standi for users, which is unheard of in many jurisdictions. Any affected user could therefore address the court with a complaint that the specific blocking method chosen affects his/her fundamental rights.

On the other hand, it was not quite clear how effective means the ISP would be obliged to use. The CJEU required “sufficiently effective” and “preventing access.. or making it sufficiently difficult to achieve and of seriously discouraging internet users who are using the [blocked] services”. The court also pointed earlier to “measures which may represent significant cost for [ISP]”. These might imply that the ISP might need to do a great deal. This would likely be disproportionate. Further, the prohibition of generic monitoring of Article 15(1) of the E-Commerce Directive (2000/31) implies that the ISP should not be placed in a duty to monitor and block sites on its own (e.g. so-called torrent proxies or alternative domain names). No guidance was provided to assess proportionality, however.

So where does this leave us?

The CJEU did not address the Advocate General's point on whether the proportionality of blocking would be affected by whether the right-holder had first attempted to target the infringing website or website's connectivity provider. That is, is there an unconditional right to sue any connectivity provider at all, or should there be some evidence that the ISP is indeed “best placed” to stop or prevent this specific infringement? 
The CJEU accepted a general blocking order that leaves the technical measures to be determined by the ISP. However, with the constraint imposed by legal certainty this essentially becomes a court-sanctioned specific order. An ISP could first do a minimal implementation and if its effectiveness is contested, augment it as required by the court and in consequence obtain court approval on compliance. It also seems that this court-approved measure cannot be forcibly changed later on without a new court order. One way to read this is that generic orders are possible only if rather heavy requirements are fulfilled by the national execution phase; few countries do.

Another interesting feature relates to requirement to ensure that users' rights are respected. Apparently users of the affected ISP gain locus standi before the court to argue that the blocking order interferes with their fundamental right to lawfully access information. This is unheard of in many jurisdictions.  In many jurisdictions, e.g. the UK, the court has entrusted itself to verifying that the terms of blocking agreed between right holders and ISPs are proportionate also from the users' perspective. In some cases this has been more of a lip service than rigorous testing. It is interesting to see how this will develop. The fear of legal expenses might in some jurisdictions inhibit complaints.

Finally, the degree how far the ISPs are obliged to go in implementing a blocking injunction was left open. This might be a challenge given that many measures are perforce somewhat ineffective and the most extensive ones too expensive or intrusive such as with Scarlet Extended (C-70/10). It is unfortunate how this was left unspecified. This is also likely to produce CJEU referrals in the future.

All in all it would seem that it would have been more straightforward to adopt the Advocate General's suggestion that generic orders are not acceptable, and that proportionality of specific orders needs to be evaluated in a case-by-case basis. With the introduced constraints and extension in the direction of putative effectiveness the result seems to increase uncertainty. The courts could possibly avoid these new constraints just by issuing specific orders. The reaction remains to be seen.

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