European Court of Justice Says ISPs Must Block Piracy Websites

The European Court of Justice (ECJ) has today ruled that Internet Service Providers (ISP) across the EU can now be ordered to block their customers from being able to access a copyright-infringing website (e.g. The Pirate Bay). But national courts will still have the final say.

The decision follows last year’s legal opinion by the ECJ’s Advocate General, Pedro Cruz Villalón, which formed part of the on-going case between UPC Telekabel Wien, an Austrian ISP, and two local movie production companies (Rights Holders) that were seeking the block of a particular website.

Back then the Advocate General took the view that ISPs do carry some responsibility for their customers’ actions, even if they themselves are not directly liable for what people do online, and that a “blocking measure imposed on a provider relating to a specific website is not, in principle, disproportionate“.

However Villalón, whom at the time was expressing a non-binding legal “opinion“, ultimately left it up to national courts to weigh whether or not a court order should be imposed. But today’s ruling, which appears to follow Villalón’s opinion, comes from the ECJ’s judgement in the above case and thus sets a new position in law.

Statement from the ECJ

In today’s judgment, the Court replies to the Oberster Gerichtshof that a person who makes protected subject-matter available to the public on a website without the agreement of the rightholder is using the services of the business which provides internet access to persons accessing that subject-matter. Thus, an ISP, such as UPC Telekabel, which allows its customers to access protected subject-matter made available to the public on the internet by a third party is an intermediary whose services are used to infringe a copyright.

The Court notes, in that regard, that the directive, which seeks to guarantee a high level of protection of rightholders, does not require a specific relationship between the person infringing copyright and the intermediary against whom an injunction may be issued. Nor is it necessary to prove that the customers of the ISP actually access the protected subject-matter made accessible on the third party’s website, because the directive requires that the measures which the Member States must take in order to conform to that directive are aimed not only at bringing infringements of copyright and of related rights to an end, but also at preventing them.

The ruling means that other EU states and Rights Holders will now be able to employ similar measures to those used in the United Kingdom. London’s High Court frequently passes down court order blocks against copyright infringing websites by using Section 97A of the Copyright, Designs and Patents Act 1988, which are almost never contested and force broadband ISPs into blocking the related sites.

Statement from the ECJ (Conclusion)

The Court therefore holds that the fundamental rights concerned do not preclude such an injunction, on two conditions: (i) that the measures taken by the ISP do not unnecessarily deprive users of the possibility of lawfully accessing the information available and (ii) that those measures have the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging users from accessing the subject-matter that has been made available to them in breach of the intellectual property right. The Court states that internet users and also, indeed, the ISP must be able to assert their rights before the court. It is a matter for the national authorities and courts to check whether those conditions are satisfied.

In its defence UPC Telekabel claimed that the various blocking measures which may be introduced could, in any event, be “technically circumvented” and were also “excessively costly“. Indeed those who go actively seeking a way around such restrictions will inevitably find one of the countless solutions for doing exactly that.

The ECJ’s ruling suggests that any decision over how to fairly balance the various issues, such as cost, must be made by national courts. Needless to say that ISPs will need to be careful when tiptoeing around this one, although at this stage it seems unlikely to change existing UK law, which already follows a similar path.

As a side note a UK court has recently muddied the waters by ruling that “information stored electronically does not constitute property which someone can exercise possession” (here). Make of that what you will.