The European Court of Justice (ECJ) could soon require all Internet Service Providers (ISP) across the EU to block their customers from being able to view websites that have been found to infringe copyright (piracy), which follows a new opinion from the courts Advocate General (Pedro Cruz Villalón).
Regular readers will note that London’s High Court has been passing down a mass of similar court ordered injunctions against broadband ISPs in the United Kingdom for over two years now, which typically requires all of the markets largest fixed line Internet providers (e.g. Sky Broadband, BT, TalkTalk, Virgin Media etc.) to block sites that are deemed to be facilitating online piracy.
In the UK such injunctions are usually raised under Section 97A of the Copyright, Designs and Patents Act 1988 and so far these have only been taken out against the biggest providers (i.e. those that can afford the not insignificant cost of managing and maintaining a complex network-level filtering system). The ISPs are usually first asked to voluntarily block the sites (they always refuse) before an injunction is raised.
Section 97A – Injunctions against service providers
(1) The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright.
(2) In determining whether a service provider has actual knowledge for the purpose of this section, a court shall take into account all matters which appear to it in the particular circumstances to be relevant and, amongst other things, shall have regard to—
(a) whether a service provider has received a notice through a means of contact made available in accordance with regulation 6(1)(c) of the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013); and
(b) the extent to which any notice includes—
(i) the full name and address of the sender of the notice;
(ii) details of the infringement in question.
However an on-going ECJ case between Austrian ISP UPC Telekabel Wien and two local movie production companies (Rights Holders) could now result in the same sort of measure being set in stone as part of EU case law, which depending upon the final wording could extend similar censorship measures both across Europe and potentially even force them upon smaller ISPs.
The situation follows a critical opinion by the ECJ’s Advocate General, Pedro Cruz Villalón, whom takes the view that Internet Providers do carry some responsibility for their customers’ actions even if they themselves are not directly liable for what people do online.
The Advocate General’s Opinion
In his Opinion today, Advocate General Pedro Cruz Villalón takes the view that the internet provider of the user of a website which infringes copyright is also to be regarded as an intermediary whose services are used by a third party – that is the operator of the website – to infringe copyright and therefore also as a person against whom an injunction can be granted. That is apparent from the wording, context, spirit and purpose of the provision of EU law.
The Advocate General is also of the view that it is incompatible with the weighing of the fundamental rights of the parties to prohibit an internet service provider generally and without ordering specific measures from allowing its customers to access a particular website that infringes copyright. That also applies where the provider can avoid incurring a penalty for breach of that prohibition by showing that it has taken all reasonable steps to comply with the prohibition. Advocate General Cruz Villalón underlines in that connection that the provider of the user has no connection with the operators of the website that infringes copyright and has not itself infringed the copyright.
However, a specific blocking measure imposed on a provider relating to a specific website is not, in principle, disproportionate only because it entails not inconsiderable costs but can easily be circumvented without any special technical knowledge. It is for the national courts, in the particular case, taking into account all relevant circumstances, to weigh the fundamental rights of the parties against each other and thus strike a fair balance between those fundamental rights.
When weighing the fundamental rights it must however be taken into account that in future action could be taken in numerous similar cases against any provider before the national courts. Advocate General Cruz Villalón also points out that rightholders must, in so far as possible, claim directly against the operators of the illegal website or their providers.
The Advocate General’s Opinion is “not binding” on the ECJ but it’s also fair to say that few cases tend to ignore it. The related case is expected to announce its verdict imminently. Meanwhile those who go actively seeking a way around such restrictions will inevitably find one of the countless solutions for doing so.