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The Liability of Internet Intermediaries The Liability of Internet Intermediaries

Contents

The Liability of Internet Intermediaries The Liability of Internet Intermediaries
1

Common themes 15.03

2

Practices in Europe 15.14

2.1

Ireland 15.14

2.2

France 15.23

2.3

Germany 15.36

2.4

Belgium 15.51

2.5

The Netherlands 15.62

2.6

Denmark 15.81

2.7

Sweden 15.98

2.8

Finland 15.104

2.9

Norway 15.122

2.10

Austria 15.126

2.11

Spain 15.130

2.12

Italy 15.136

2.13

Greece 15.143

15.01 This chapter considers website blocking practices in European nations besides the United Kingdom. Most member states have enacted legislation to permit courts or administrative authorities to issue website blocking injunctions in some form.1 The majority of these statutory remedies are restricted to the enforcement of copyright and related rights, but some target other rights or pursue public policies such as the regulation of online gaming or the prohibition of images depicting child abuse. In some jurisdictions, blocking orders are available without any specific legislative basis, pursuant to ordinary rules governing injunctive relief.

15.02 The following sections compare judicial and legislative approaches to website blocking in thirteen European jurisdictions and comment on emerging trends. The United Kingdom is rapidly emerging as a European leader in website blocking. It has the most advanced system for filtering child abuse material, and technology once developed for that purpose is now being reapplied to enforce copyright and other rights. France, Spain, Italy, Ireland, and most Scandinavian countries have also implemented wide-ranging statutory blocking schemes. By contrast, countries such as Germany, The Netherlands, and Greece have proved much less receptive to blocking, in large part due to public opposition and the stronger constitutional protections and cultural status afforded to freedom of expression. Table 15.1 offers a simplified comparison of these developments.

Table 15.1
Website blocking in Europe
CountryStatutory remedyGeneral remedyLimitationsStandard methodPirateBay status
United KingdomCopyrightYesKnowledge (s 97A) and proportionalityIP rerouting + DPI-based URL filteringBlocked by major ISPs
IrelandCopyrightNoUnclearUnclearBlocked by major ISPs
FranceCopyright, defamation, illegal materialYesVariousIP or DNS blockingBlocked by major ISPs
GermanyNoNoUnclearAccessible
BelgiumCopyrightProportionalityDNS blockingBlocked by 2 major ISPs
The NetherlandsCopyrightProportionality, Involvement, acceptable cost, least intrusiveIP + DNS blockingAccessible (subject to appeal)
DenmarkCopyrightProportionalityDNS blocking (details left to ISPs)Blocked by major ISPs
SwedenNoMonitoringUnclearAccessible
FinlandCopyrightReasonableness, proportionality, foreign websitesIP + DNS blockingBlocked by major ISPs
NorwayNoNoUnclearBlocked by major ISPs
AustriaCopyrightProportionality, cross-undertakingIP or DNS blockingAccessible
SpainCopyrightNoObjectivity, proportionality, non-discriminationUnclearBlocked by all ISPs
ItalyCopyrightCriminal lawNecessity, proportionalityUnclearBlocked by all ISPs
GreeceNoNoProportionality, constitutional rightsIP blockingAccessible
CountryStatutory remedyGeneral remedyLimitationsStandard methodPirateBay status
United KingdomCopyrightYesKnowledge (s 97A) and proportionalityIP rerouting + DPI-based URL filteringBlocked by major ISPs
IrelandCopyrightNoUnclearUnclearBlocked by major ISPs
FranceCopyright, defamation, illegal materialYesVariousIP or DNS blockingBlocked by major ISPs
GermanyNoNoUnclearAccessible
BelgiumCopyrightProportionalityDNS blockingBlocked by 2 major ISPs
The NetherlandsCopyrightProportionality, Involvement, acceptable cost, least intrusiveIP + DNS blockingAccessible (subject to appeal)
DenmarkCopyrightProportionalityDNS blocking (details left to ISPs)Blocked by major ISPs
SwedenNoMonitoringUnclearAccessible
FinlandCopyrightReasonableness, proportionality, foreign websitesIP + DNS blockingBlocked by major ISPs
NorwayNoNoUnclearBlocked by major ISPs
AustriaCopyrightProportionality, cross-undertakingIP or DNS blockingAccessible
SpainCopyrightNoObjectivity, proportionality, non-discriminationUnclearBlocked by all ISPs
ItalyCopyrightCriminal lawNecessity, proportionalityUnclearBlocked by all ISPs
GreeceNoNoProportionality, constitutional rightsIP blockingAccessible
Table 15.1
Website blocking in Europe
CountryStatutory remedyGeneral remedyLimitationsStandard methodPirateBay status
United KingdomCopyrightYesKnowledge (s 97A) and proportionalityIP rerouting + DPI-based URL filteringBlocked by major ISPs
IrelandCopyrightNoUnclearUnclearBlocked by major ISPs
FranceCopyright, defamation, illegal materialYesVariousIP or DNS blockingBlocked by major ISPs
GermanyNoNoUnclearAccessible
BelgiumCopyrightProportionalityDNS blockingBlocked by 2 major ISPs
The NetherlandsCopyrightProportionality, Involvement, acceptable cost, least intrusiveIP + DNS blockingAccessible (subject to appeal)
DenmarkCopyrightProportionalityDNS blocking (details left to ISPs)Blocked by major ISPs
SwedenNoMonitoringUnclearAccessible
FinlandCopyrightReasonableness, proportionality, foreign websitesIP + DNS blockingBlocked by major ISPs
NorwayNoNoUnclearBlocked by major ISPs
AustriaCopyrightProportionality, cross-undertakingIP or DNS blockingAccessible
SpainCopyrightNoObjectivity, proportionality, non-discriminationUnclearBlocked by all ISPs
ItalyCopyrightCriminal lawNecessity, proportionalityUnclearBlocked by all ISPs
GreeceNoNoProportionality, constitutional rightsIP blockingAccessible
CountryStatutory remedyGeneral remedyLimitationsStandard methodPirateBay status
United KingdomCopyrightYesKnowledge (s 97A) and proportionalityIP rerouting + DPI-based URL filteringBlocked by major ISPs
IrelandCopyrightNoUnclearUnclearBlocked by major ISPs
FranceCopyright, defamation, illegal materialYesVariousIP or DNS blockingBlocked by major ISPs
GermanyNoNoUnclearAccessible
BelgiumCopyrightProportionalityDNS blockingBlocked by 2 major ISPs
The NetherlandsCopyrightProportionality, Involvement, acceptable cost, least intrusiveIP + DNS blockingAccessible (subject to appeal)
DenmarkCopyrightProportionalityDNS blocking (details left to ISPs)Blocked by major ISPs
SwedenNoMonitoringUnclearAccessible
FinlandCopyrightReasonableness, proportionality, foreign websitesIP + DNS blockingBlocked by major ISPs
NorwayNoNoUnclearBlocked by major ISPs
AustriaCopyrightProportionality, cross-undertakingIP or DNS blockingAccessible
SpainCopyrightNoObjectivity, proportionality, non-discriminationUnclearBlocked by all ISPs
ItalyCopyrightCriminal lawNecessity, proportionalityUnclearBlocked by all ISPs
GreeceNoNoProportionality, constitutional rightsIP blockingAccessible

15.03  No uniform approach. In light of the differences between national procedural rules and content regulations, a degree of divergence between member states’ blocking practices is understandable if regrettable. Several European cases were surveyed by Arnold J in Newzbin2, from which his Lordship concluded that ‘no uniform approach has emerged among European courts’.2 Since that statement was made in 2012, national practices have further diverged as a result of the creation of national administrative blocking authorities, many of which apply incompatible criteria and procedures.

15.04  Inconsistent transposition. One of the reasons for this divergence is that not all member states have transposed article 11 of the Enforcement Directive and article 8(3) of the Information Society Directive fully or, in some cases, at all. Ireland lacked any basis for injunctive relief against non-infringer ISPs until 2012. Norwegian courts have refused blocking orders for the same reason. German courts do not consider that either Directive affects the national law on secondary liability. Sweden lacks a specific blocking power.

15.05 By contrast, courts in the United Kingdom, The Netherlands, Denmark, Finland, Austria, and Italy have cited the Directives as reasons for granting relief—and occasionally for enacting or recognising sui generis remedies. This divergence significantly undermines the objectives of European copyright harmonisation, creates uncertainty, and raises enforcement costs for claimants. For consumers, it risks fracturing the European internet into a set of inconsistent national networks within which content is subjected to a patchwork of incompatible and overlapping content liability regimes.

15.06  Desirability of harmonisation. While more empirical analysis is needed, adverse effects on interstate commerce are certainly conceivable. Harmonisation at the European Union level is clearly desirable, both to ensure minimum standards of relief and to avoid inconsistent decisions. Nevertheless, some common themes have also emerged.

15.07 Upper and lower limits on injunctive remedies are widely applied, and have been further clarified by the decision of the Court of Justice in UPC Telekabel. Despite large variations in their availability, scope, and technical implementation, website blocking injunctions are widely recognised throughout Europe for copyright infringement. Additionally, public authorities in several member states have powers to order blocking to further various public policies, such as the regulation of online gaming and combating the dissemination of child abuse materials. Blocking is an increasingly widespread national remedy, emerging in jurisdictions ranging from Iceland3 to India.4

15.08 The vast majority of blocking claims have succeeded. The most likely explanation for this is that applicants are targeting the most obvious infringers when bringing test cases. Once these low-hanging fruit have been plucked, it remains to be seen whether success rates will fall. However, it should be noted that in some jurisdictions, even the most egregious platforms for infringement have met with refusal to order blocking measures.5

15.09 Although courts are willing to embrace statutory blocking mechanisms, regulators in at least three member states have abandoned proposals to strengthen the copyright blocking regime by the use of procedures overseen by administrative authorities. The United Kingdom government has repealed section 17 of the Digital Economy Act; while Spain, The Netherlands, and Germany have watered down filtering policies in other areas. The restoration of Italy’s AGCOM may be the exception. Public opposition and difficult political climates in member states are partly responsible; blocking remains a highly unpopular policy which engenders passionate rhetoric from digital activists, service providers, and right-holders. The decision in Scarlet may have also dampened regulators’ and claimants’ appetites for intrusive injunctive relief. With some notable exceptions, governments seem to be exhibiting a preference for co-regulation rather than broader ISP liability regimes.

15.10 Blocking remedies have so far tended to be granted in the context of private actions for copyright infringement. Remarkably, blocking is limited to a handful of websites—mainly notorious BitTorrent trackers and portals for infringing content. However, courts in France and Germany appear to have accepted that, at least in principle, blocking might also apply in cases of defamation and unfair competition. Most member states require or strongly encourage ISPs to use the same technology to block access to materials considered illegal under national law. French legislation encompasses by far the widest range of blockable materials, but most states regulate blocking of child abuse and terrorist materials, unlicensed gambling operators, and hate speech. Additionally, one court in Denmark has granted an injunction to block a website on grounds of trade mark infringement.

15.11 Courts in different member states apply broadly similar principles in determining whether to exercise their discretion to grant a blocking injunction. Regardless of whether their decisions are framed in terms of the ‘reasonableness’, ‘appropriateness’, or ‘proportionality’ of blocking, most courts’ reasoning traverses five related issues: (1) the extent to which blocking will be effective; (2) whether there are other, less intrusive remedies available; (3) the extent to which blocking will produce undesirable side-effects, such as overblocking; (4) how those side-effects compare to the ongoing harm being suffered by the applicant; (5) the reasonableness of the applicant’s conduct; and (6) whether blocking will unjustifiably interfere with the fundamental rights of users and ISPs, in particular privacy, freedom of expression, and freedom of business, or will violate constitutional guarantees. Many of the differences between national courts can be explained by disagreement over one or more of these basic issues.

15.12 The scope and boundaries of blocking orders are expressed with various degrees of specificity. At one extreme sit the English courts, which enumerate precisely what it is that the respondent must do, including the technology to be applied, the treatment of future additions to the blacklist, notification and testing regimes, and even network maintenance and upgrades. Finnish and Belgian courts also tend to issue precise orders. At the other extreme, courts in Sweden, Denmark, and Italy offer very little guidance to respondents about the way in which blocking should be carried out. Decisions in France, The Netherlands, Austria, and Spain tend to fall somewhere between these two extremes.

15.13 Also notable are differences in the way orders are framed: English orders are broadly deontological—to attempt to block access by taking various steps—while orders in civil law countries tend to be teleological—predicated on the outcome which must be achieved. It is suggested that specific, deontological orders are preferable in most situations because they are fairer and more certain, and recognise that successful blocking may be rendered impossible by circumstances wholly outside the respondent’s control.

15.14 Ireland provides a good example of the judicial and political climate within which website blocking regulations have developed. In EMI Records (Ireland) Ltd v UPC Communications Ireland Ltd,6 the High Court held that it had no jurisdiction to enjoin a domestic ISP from supplying access to a foreign website from which copyright-infringing material could be accessed. The claimants sought, inter alia, an order requiring the defendant ISP to block access to http://www.thepiratebay.org/ (‘TPB’). Refusing the injunction with visible reluctance, Charleton J concluded that the Court had no jurisdiction to make a blocking order:

Regrettably on a full consideration of this matter, a blocking injunction is not available in Irish law....Were it available, I would grant it....I would regard it as both educative and helpful to block Pirate Bay were I enabled by the relevant legislation to do so. At the very least, it declares that the activity is illegal. I cannot grant the injunction because I have no legal power to do so.7

15.15  Private blocking agreements. Eircom, the country’s largest ISP, had previously capitulated to pressure from the music industry, agreeing to implement such a block voluntarily as part of its settlement of existing proceedings.8

15.16  Lack of inherent jurisdiction. Charleton J concluded that the government’s failure to enact blocking remedies was understandable but nevertheless fell short of the enforcement requirements imposed by European law:

It is not surprising that the legislative response laid down in our country in the Copyright and Related Rights Act 2000, at a time when this problem was not perceived to be as threatening to the creative and retail economy as it has become in 2010, has made no proper provision for the blocking, diverting or interrupting of internet communications intent on breaching copyright. In failing to provide legislative provisions for blocking, diverting and interrupting internet copyright theft, Ireland is not yet fully in compliance with its obligations under European law....Respecting, as it does, the doctrine of separation of powers and the rule of law, the Court cannot move to grant injunctive relief to the recording companies against internet piracy, even though that relief is merited on the facts....The Court thus declines injunctive relief.9

15.17  Transposition measures. In response to this decision, the Irish government launched a consultation into the adoption of new injunctive remedies for online copyright infringement. This culminated in the introduction, on 1 March 2012, of a statutory instrument which permits the High Court to issue an injunction against any person who supplies facilities being used to infringe the applicant’s copyright.

15.18 Under the new section 40(5A) of the Copyright and Related Rights Act 2000 (IE), a copyright owner may apply for ‘an injunction against an intermediary’ within the meaning of article 8(3) of the Information Society Directive.10 The available terms of the injunction are left unspecified and are presumably coterminous with the provision being transposed. However, in deciding whether to grant relief, the Court is obliged to have regard to the rights of ‘any person likely to be affected’ and may require any such person to be given notice.11

15.19 Introducing the statutory instrument, the Minister for Research and Innovation commented that although the wording was broad, judges already had ample guidance from the Court of Justice about the limits which must be respected in ordering injunctions against intermediaries.12 It therefore seems that the government’s intention is that this power will be subject to an assessment of proportionality, necessity, interference with fundamental rights, general monitoring obligations, and so on. The measure has attracted widespread opposition and has been criticised, somewhat inaccurately, as an ‘Irish SOPA’.13

15.20  Graduated response injunctions. In Sony Music Entertainment (Ireland) Ltd v UPC Communications Ireland Ltd [No 1],14 the High Court of Ireland ordered the respondent, a large Irish ISP, to implement a graduated response scheme15 in response to allegations of copyright infringement made against its subscribers by the claimants. The injunction was made pursuant to section 40(5A) of the 2000 Act, on the basis that subscribers of the ISP were using its service to infringe copyright. However, the injunction did not require the respondent to block access to any particular internet location; instead, it required letters to be sent to subscribers who were alleged to infringe the claimants’ copyright.

15.21  Assessment of proportionality. In granting the injunction, Cregan J commented that the order was compatible with the limits on injunctions set out in European law, as interpreted in cases such as Scarlet and UPC Telekabel, and concluded that the order would be effective, proportionate and dissuasive:

I am satisfied that the injunction which I propose to grant in this case does indeed strike a fair balance between the protection of intellectual property rights enjoyed by copyright holders and the freedom to conduct a business enjoyed by operators such as ISPs. I am also satisfied that the injunction which I propose to grant does not apply indiscriminately to all customers of the defendant and it does not require the defendant to introduce a system for filtering all electronic communications passing on its internet services. Moreover it is not a purely preventative measure but rather a measure which is primarily designed to identify actual infringements which have taken place and to notify such infringers to cease and desist their activities.16

15.22 The Court concluded that the injunction sought would be fair and equitable, having regard to the scale of infringement that was taking place, and the fact that the Irish transposition of article 8(3) expressly permitted the court to order injunctions against intermediaries even though they were mere conduits.17

15.23  Prohibited war memorabilia. Website blocking has a long history in France. In an early case concerning intermediary content liability, Yahoo! was ordered to block French access to Nazi war memorabilia which was sold via its auction platform by third parties. The relief granted by the Tribunal de Grande Instance de Paris required, inter alia, Yahoo! to take ‘all necessary measures’ (1) to ‘render impossible’ all French access to its auction services where Nazi memorabilia were sold; and (2) to ‘render impossible any other site or service’ that is apologist or denialist.18 Yahoo!’s appeal was dismissed on the basis of expert evidence that it was technically feasible to block approximately 90 per cent of French users from accessing the prohibited materials, which was considered sufficient.19 A subsequent criminal prosecution against Yahoo! and an employee was also dismissed.20 A United States court refused to grant relief against the order.21

15.24 Leaving aside the difficult questions of jurisdiction and substantive policy implicated by national prohibited content rules, the Yahoo! case was essentially concerned with blocking access. In this respect, the Court’s analysis of technical feasibility anticipated many arguments considered in later blocking cases. The defendant was a search engine and web portal providing online marketplace services rather than an ISP, but the issues and relief granted were analogous: Yahoo! was required to block its users’ access to identified materials using a combination of IP blocking and other methods.22 The difference was that Yahoo! hosted those materials on its servers rather than those of third parties.

15.25  Hate speech. Subsequent cases have made similar orders against ISPs. In 2008, the Cour de Cassation confirmed a decision of the Paris Court of Appeal which ordered 10 French ISPs to block access to anti-Semitic content hosted at http://vho.org/aaargh and related URLs.23 The order was made under article 6-I-8 of the Loi pour la Confiance dans l’Économie Numérique 2004 (FR),24 which transposed the E-Commerce Directive and made provision for injunctions against access providers to prevent or stop damage being caused by the content of third party websites. The applicants had not commenced proceedings against the authors of the material or taken any steps to identify them.

15.26 The Court appears to have reasoned that the availability of injunctive relief against ISPs and other access providers was compatible with the safe harbours established under the E-Commerce Directive in respect of monetary liability. There being no requirement to take action against the primary wrongdoer, the Court concluded that indefinite blocking was proportionate, despite being ostensibly an interim measure.

15.27  Speech inciting violence. In October 2011, the Tribunal de Grande Instance de Paris ordered French ISPs to block access to a website known as ‘Copwatch’, which was accessible at https://copwatchnord-idf.org/.25 This website encouraged citizens to post videos of police misconduct. The Court characterised the website as one whose purpose was to incite violence against the targeted officials, who were defamed and had their personal information unlawfully disclosed.26

15.28 The Court ordered the ISPs to prevent access to the entire domain name using either IP or DNS blocking, as an interim remedy until the substance of the claimants’ action could be determined. The order was again based on article 6-I-8, and was held to be a proportionate measure mainly because the author of the website could not be identified.27 The Court stopped short of ordering DPI-based blocking, which was said to be disproportionately burdensome, and emphasised that the ISPs themselves were not liable for the publications, since they derived no benefit from them and had no ‘legal relationship’ with their authors. The costs of implementing the blocking order were to be paid by the claimants.28

15.29 In eBay Inc v LVMH, the Cour de Cassation held eBay liable for third parties’ trade mark infringements on its platform.29 The Court appears to have reasoned that eBay played an ‘active role’ in assisting sellers to promote and optimise their offers of infringing goods. This conferred constructive knowledge of the infringements, which led to monetary liability. However, the Court does not seem to have dealt with the issue of a blocking order that would have required any ISP to block access to eBay or to the infringing listings.

15.30  Child abuse material. Website blocking is also an accepted remedy to enforce public policies, though these policies sometimes shade indissolubly into private remedies for breaches of tortious duties.30 The French National Assembly enacted the controversial Loi D’orientation et de Programmation pour la Performance de la Sécurité Intérieure, which vests broad website blocking powers in a governmental authority. Article 4 creates an obligation for ISPs to ‘prevent access without delay’ to images of child abuse once notified by an administrative authority.31 The explanatory memorandum explains that article 4 imposes responsibility on ISPs to prevent their users’ from accessing ‘illegal content’ in the form of a list of prohibited websites to be supplied as a decree of the Minister of the Interior. Updates to this list will be transmitted periodically by the National Cyber Crime Investigation Unit. ISPs will be given the choice of which blocking technology to use.32

15.31  Online gambling. Article 21 of the Loi à l’ouverture à la Concurrence et à la Régulation du Secteur des Jeux d’Argent et de Hasard en Ligne conferred power on the Regulatory Authority of Online Games (‘ARJEL’) to issue blocking orders to ISPs in respect of unlicensed online gambling websites.33 In ARJEL v Costa Rican Instituto Costarricensede Electricidad y Telecom Grupo ICE, the Tribunal de Grande Instance de Paris upheld one of the first blocking orders against eight French ISPs in respect of a Costa Rican online gambling website.34

15.32 In March 2011, the French Constitutional Council upheld article 4 as consistent with the constitutional freedom of communication.35 Shortly afterwards, the government announced an executive order which would dramatically expand these administrative blocking powers. Under the order, powers were conferred upon the ministries of defence, finance, justice, the interior, trade, health, and digital economy to order ISPs to block access to any web content that ‘threatens’ public security, minors, public health, national defence, consumers, or investors.36 The order was designed to give effect to article 18 of the Law for Trust in the Digital Economy, and provides a clear signal that policies involving website blocking technologies will be further pursued in France.

15.33  Terrorism-related content. In November 2014, the Loi pour la Confiance dans l’Économie Numérique37 was amended by anti-terrorism legislation to make provision for website blocking by an administrative authority. The powers apply where necessary to prevent incitement of terrorist activities or the dissemination of child pornography, and where the host of the material has failed to remove it within 24 hours of notification; the authority may also notify the addresses to search engines, who are then obliged to ‘take all appropriate measures’ to prevent communication of the material via the service.

15.34 The details of the procedure were to left to a ministerial decree,38 which required blocking service providers to redirect their users to an information page operated by the Interior Ministry which indicates the grounds for blocking.39 The administrative authority is required to verify the unlawful nature of all blocked materials at least once every quarter; if material becomes lawful or is deleted at source, then all blocking services must cease blocking within 24 hours of notification.40 The legislation makes provision for financial compensation to service providers who must make additional ‘specific investments’ or ‘interventions’ due to their blocking obligations.41 This appears to cover both capital and operational costs, which will be reimbursed by the State in accordance with an audit procedure.

15.35  Copyright infringement. In Societe Civile des Producteurs Phonographiques v La Société Orange SA, the Tribunal de Grande Instance de Paris ordered four major French ISPs (Orange, Free, SFR, and Bouygues Telecom) to block access to thepiratebay.se and 50 proxies and 21 mirrors.42 The ISPs were ordered to implement all appropriate measures necessary to prevent access to those locations from within France within 15 days of the order. The basis of the order was article L336-2 of the Code de la propriété intellectuelle, which allows the court to order any ‘public communication service’ to take measures to prevent or stop infringements of copyright or related rights caused by the service.

15.36 German courts have taken a more equivocal approach to website blocking orders, with a majority of decisions refusing injunctive relief. The main authorities are considered below.

15.37  Online gambling. Most injunctions have been sought in the context of prohibited content, such as unlicensed gambling services and certain forms of pornographic material. For example, in Deutsche Telekom AG v District Government of Düsseldorf,43 the Administrative Court of Cologne held that the defendant ISP was under no obligation to block access to overseas wagering websites which were unlawful under the Gaming Law and Penal Code.44 To similar effect, the same Court in Vodafone D2 GmbH v District Government of Düsseldorf refused to order a mobile carrier to block sports betting websites.45

15.38 The Court gave three main reasons. First, mobile carriers, like other ISPs, fall within the transmission safe harbour under section 8 of the Telemediengesetz since they do not select or modify the information being transmitted between third parties. Second, the Court considered that DNS blocking was an ineffective method to prevent access and could easily be circumvented by users. Third, the principle of equality was inconsistent with issuing a blocking order against only one carrier in North Rhine-Westphalia, which would be likely to put that carrier at a competitive disadvantage. Accordingly, the District Government’s order was an abuse of discretion.

15.39  Pornography. In Kirchberg Logistik GmbH v Arcor, the operator of a commercial pornographic website sought a blocking order to prevent alleged unfair competition by an ISP which had unblocked access to youporn.com, an overseas competitor. Arcor had previously instituted an IP block against the website which, contrary to German law, did not have an effective age verification mechanism. The website had also been de-indexed by Google.de and placed on a list of ‘illegal material’ by the national content regulator.

15.40 At trial, the claimant succeeded in obtaining an injunction requiring the ISP to restore the block using DNS filtering.46 The injunction was subsequently overturned by the Landgericht Frankfurt, which concluded that the ISP in question was not sufficiently proximate to the illegal content to come under a legal duty to restrict access to it.47 Instead, ISPs were expected to provide content-neutral services and could not be ordered to restrict access to particular pages based on their content. Blocking injunctions sought against other German ISPs have been refused on similar grounds.48

15.41  Web servers. One decision of the District Court of Cologne suggests that similar logic will apply in intellectual property cases. In EMI Music Germany GmbH & Co KG v HanseNet Telecommunications Ltd,49 the claimant sought an order that the defendant ISP block one of its customers from accessing a Russian file-sharing server from which infringing musical works were being downloaded. The Court refused injunctive relief against the ISP, reasoning that it supplied purely technical services and was not secondarily liable for the infringements under the doctrine of Störerhaftung. In any case, preventative measures using DNS and IP blocking interfered with the secrecy of electronic communications, and could not be granted without a specific statutory basis.50 Interestingly, the Court also concluded that the Information Society Directive did not alter this conclusion, since secondary liability was a matter for national law and existing forms of injunctive relief were sufficiently effective.51

15.42  Lack of inherent jurisdiction. In another blocking case, the claimant sought to rely upon disturber liability (Störerhaftung), but the Court concluded that:

The unwritten principles of the [disturber] liability...are neither suitable nor intended in the [Court’s] opinion, to determine this kind of far-reaching fundamental rules for an intervention. [Such] measures that also interfere in the rights of uninvolved third parties could only be justified on the basis of a clear legislative decision as to the kind and extent of the access prevention. This is precisely missing at the present time.52

15.43  File-lockers. In Keine Störerhaftung für Access-Provider—3dl.am,53 the Hamburg Hanseatic Higher Regional Court refused to grant injunctive relief against ISPs that supplied access to the copyright-infringing website ‘3dl.am’ in circumstances where domestic German law did not expressly provide for such injunctions. This case related to blocking injunctions under article 8(3). The claimant collecting society sought orders against Germany’s largest ISP to block access to the website, which was a repository of links to infringing material hosted on file-lockers.

15.44 The claimant based its claim on disturber liability (Störerhaftung), and also argued that the defendant’s obligation derived directly from article 8(3), which had not been specifically implemented in the German Copyright Act. The ISP argued that it was under no obligation, and alternatively that its costs of implementation and future maintenance costs should be paid. At trial, the District Court of Hamburg dismissed the claim. On appeal, the Superior Court accepted that domestic law did not immunise ISPs against the possibility of interferer liability. However, such liability could not arise until it was, first, technically possible to take action, and second, reasonable to take action. The Court explained that, because an ISP is a neutral service that merely provides infrastructure for committing infringements, it has a less proximate or ‘substantive’ relationship to the infringer than hosting providers.54

15.45 In these circumstances, it would not be reasonable to take action to prevent a third party’s wrongdoing unless the ISP breached a Prüfpflichten (monitoring) obligation after being notified. However, such obligations would not apply to a general purpose ISP which operated an ordinary commercial business model, and which was used for other lawful purposes. Although they did causally contribute to the copyright infringements by supplying internet access to their customers, it was neither possible nor reasonable to check whether subscribers’ downloads infringed copyright.

15.46  Need for domestic legislation. The Court concluded that it needed a legislative measure to impose liability, as the German Parliament had done in relation to child pornography websites but failed to do for copyright website blocking. It commented:

A statutory provision would have to determine the prerequisites of a measure in detail, in particular in view of the principle of reasonableness....[S]evere intervention of this kind [with constitutional rights] in any case requires on principle in the Chamber’s opinion, a sufficiently specific statutory basis, which specifically determines the prerequisites for measures of this kind in detail. An explicit statutory basis for applying a DNS block does not exist.55

In the Court’s opinion, it was for Parliament to act, and it would not be appropriate for the Court to impose sanctions where this would involve interfering with fundamental rights.

15.47 In November 2015, the Bundesgerichtshof handed down judgment in Storerhaftung des Access-Providers—Goldesel.to, in which the Court concluded that it would be disproportionate to order an ISP to block access to the website goldesel.to, from which infringing copies of the claimants’ works could be downloaded. The ISP was not considered a Storer because it did not solicit or encourage the infringements, and instead offered lawful services. Accordingly, it would not owe any duty to monitor or prevent infringements unless and until notified by the claimants, notwithstanding article 11 of the Enforcement Directive.56 Previously, the Higher Regional Court of Cologne had held that the ISP was not secondarily liable for infringement and owed no duty to prevent the infringements.

15.48 The Bundesgerichtshof made a number of findings on proportionality. First, it did not accept the defendant’s assertion without evidence that DNS and IP blocking would cost 1m to implement. Second, relying upon Cartier, the Court considered that the correct test for effectiveness was whether the remedy would ‘curtail’ infringements, even if some users or operators circumvented the order or the claimants’ rights continued to be infringed by others. Third, if only a negligible quantity of lawful content would be affected by blocking then it could be reasonable. Fourth, blocking would not affect the rights of users to secrecy of their communications.

15.49 However, in the circumstances of the case, blocking would be disproportionate because the claimants had failed to take action against the website operators.57 Before blocking would be reasonable, the claimants would have to show that action against the primary wrongdoer would have no prospect of successful enforcement. In this regard, the fact that the website host was domiciled in Russia was insufficient; the claimants did not explain why it was impossible to identify the website operator. Accordingly, their claim failed.

15.50  Child abuse material. Under the Restricted Access to Child Pornography in Communication Networks Act 2009 (DE), domestic ISPs were obliged to block access to a list of URLs supplied by the Federal Criminal Investigation Agency. Although details are scarce, the filter appeared to rely on IP address rerouting to display a message and collect statistics on the frequency with which users attempt to access each blocked page. The statute attracted severe criticism, since it was seen as a gateway to other forms of censorship.58 After the Act came into force, the public called for its immediate repeal in a petition attracting over 130,000 signatures, and a constitutional challenge was issued.59 Following a change in government, the Bundestag repealed the Act in December 2011.60

15.51 Website blocking injunctions have been granted against Belgian ISPs since at least 2004, when Scarlet Extended SA (‘Scarlet’) was ordered to install a website blocking system designed to prevent Scarlet’s customers from exchanging works in the claimant’s members’ repertoire via peer-to-peer file-sharing networks.61 The interim injunction was ordered pursuant to a transposed version of article 11 of the Enforcement Directive, which permitted the Court to issue an injunction ‘against intermediaries whose services are used by a third party to infringe a copyright or related right’.62

15.52  Terms of the national injunction. The terms of the injunction required Scarlet to install a DPI-based implementation of Audible Magic to block infringing communications in perpetuity, with all costs to be borne by the ISP. This required Scarlet’s systems to monitor all network traffic and determine which packets related to audio files which were probabilistically matched against a database of the claimants’ copyright works. The trial judge accepted the evidence of a court-appointed expert that filtering of this kind was technically feasible. However, Audible Magic proved ineffective, slow, and expensive when applied to the activities of a commercial ISP.63

15.53  Decision of the CJEU. In response to a reference on two preliminary questions, the Court of Justice held in November 2011 that such an injunction was invalid as a matter of European law. This decision is discussed in greater detail in chapter 13. Four aspects of the Court's reasoning are summarised here. First, in requiring Scarlet to monitor all data transmissions to determine which might be unlawful, the Belgian Court’s injunction contravened the prohibition on general monitoring contained in article 15(1) of the E-Commerce Directive.64

15.54 Second, the injunction failed to strike a ‘fair balance’ between the competing fundamental rights. The Court emphasised that although copyright owners have the right to enjoy their intellectual property, that right is not ‘inviolable’ and must accordingly be balanced against an ISP’s freedom to conduct its business.65 The cost and breadth of the filtering obligations would produce ‘a serious infringement’ of that freedom.66

15.55 Third, compliance would be excessively complicated and costly in that Scarlet would need to install a filtering system which it did not already possess and monitor the claimant’s existing and future works forever, without recompense for the impact on its business. 67

15.56 Fourth, the injunction would undermine the rights of internet users to privacy and freedom of expression.68 As to the former, filtering would involve collecting the IP addresses of users who were communicating ‘unlawful content’.69 This reasoning is in contrast to the English approach, which posits that tortfeasors’ privacy rights are subsidiary to claimants’ property rights.70 As to freedom of expression, the risk of overblocking was appreciable, which would undermine the freedom to receive and impart information under article 11 of the Charter.

15.57  Compatibility of specific blocking measures. Notwithstanding these observations, the decision in Scarlet does suggest that more limited blocking injunctions are, in principle, compatible with European law. The Court accepted that European law requires that right-holders be able to apply for injunctions against ISPs whose services are being used by third parties to infringe their rights. Confirming eBay, the Court emphasised that these injunctions must also permit the prevention of further infringements,71 which generally entails some form of blocking.

15.58  Matters left to national law. The CJEU left a wide margin of appreciation to member states, who are free determine the conditions and procedure governing injunctions against intermediaries.72 What the decision confirms is that the national court’s discretion is not absolute: mandatory upper limits apply to blocking orders. These limits stem from the fact that the relevant Directives must be construed in light of the Charter so as to balance the fundamental rights of ISPs, claimants, and internet users.73 Although the balance was not properly struck by the trial judge in Scarlet, an injunction which required an ISP to use an existing, less costly method of blocking to filter a narrower selection of URLs or IP addresses would probably be valid.

15.59  Effect upon Belgian blocking practices. Like other European member states, the courts of Belgium now appear to be granting blocking injunctions in narrower terms. For example, in October 2011, two of Belgium’s largest ISPs were ordered to block access to TPB and 12 related URLs using DNS blocking.74 The order reportedly gave Telenet and Belgacom two weeks to comply, after which a monetary penalty would apply, but confirmed that they would not be liable if their subscribers were able to circumvent the measures. The appellate court overruled the decision of the trial judge that blocking would be disproportionate.75

15.60  Circumvention attempts. The same day as the blocking injunctions were imposed, popular file-sharing website TorrentFreak published a step-by-step guide instructing its Belgian readers in how to circumvent the block by using an alternative DNS server.76 The next day, The Pirate Bay boasted that it had acquired a new Belgian domain name, http://depiraatbaai.be/, which was not within the scope of the blocking order.77

15.61  Social networks. In February 2012, the Court of Justice handed down its decision in Netlog, overturning an injunction cast in similar terms to Scarlet.78 There the respondent was a social network which allowed its users to upload files, including films and musical works which allegedly infringed the applicant’s copyrights. Although the case concerned an intermediary which hosted (rather than transmitted) infringing files, the Court applied almost identical reasoning to conclude that the injunction imposed a general monitoring duty and impermissibly interfered with the fundamental rights of the respondent and its users.79

15.62  Statutory basis. Dutch courts have traditionally been reluctant to issue blocking orders to restrain third parties’ copyright infringement. Article 26d of the Dutch Copyright Act (Auteurswet) and article 15e of the Dutch Neighbouring Rights Act (Wet op de Naburige Rechten) transpose article 11 of the Enforcement Directive. According to an unofficial translation, article 26d provides:

At the request of the author, the court can order intermediaries whose services are used by third-parties to infringe on copyright, to stop providing the services that are used to infringe ...

This appears to be a direct transposition of article 8(3). It is limited on its face to infringements (inbreuken) of copyright (op het auteursrecht).

15.63 In Stichting Bescherming Rechten Entertainment Industrie Nederland (BREIN) v Ziggo BV, the District Court of The Hague refused to grant an interim injunction against Ziggo and XS4ALL, two large Dutch ISPs, which would have required them to block access to TPB.80 The claim was based on the legislative provisions set out above.

15.64  Limitations upon blocking injunctions. Relying on extrinsic materials and the Directive itself, the District Court identified two main limits on blocking orders:

(a)

First, injunctive relief may be inappropriate if the intermediary’s involvement is minor, if compliance would be disproportionately costly, or if the balance of convenience favours the intermediary.

(b)

Second, if the intermediary is not itself an infringer and third parties exist who are ‘equally obvious and possible’ targets of litigation, injunctive relief should be refused.81

15.65 The Court added that blocking must be proportionate to the level of infringement, of ‘acceptable cost’, and the least intrusive remedy.82 After describing these limits, the District Court held that the applicant, which represented Dutch copyright owners, should instead bring actions against individual subscribers.

15.66  Action against website operators. The District Court of Amsterdam had previously issued an order requiring the operators of The Pirate Bay to block access to Dutch internet users.83 Unsurprisingly, the operators did not comply and the Court, lacking extraterritorial jurisdiction over the website host, was unable to enforce its order.

15.67 In January 2012, the District Court’s order in Ziggo was overturned.84 The Rechtbank ‘s-Gravenhage held that other methods of enforcement had proved ineffective and there was no less intrusive measure by which subscribers’ ongoing infringements could be prevented. The Court accepted evidence that roughly 30 per cent of Ziggo subscribers and 4.5 per cent of XS4ALL subscribers downloaded infringing material using The Pirate Bay.85

15.68  Primary infringement. Although the Dutch private copying exception complicates matters, the Court concluded that it did not apply to the use of BitTorrent by subscribers, since this necessarily entailed some level of upload activity, which clearly fell outside the exception.86 Accordingly, the respondents were intermediaries whose services were being used to infringe copyright within the meaning of the primary legislation.

15.69  Objections to relief. The Court systematically rejected the respondents’ objections to relief:

(a)

First, the Court reasoned that relief was not limited to specific infringements but (citing L’Oréal) could apply to future infringements, provided that the injunction struck a fair balance between the affected rights.

(b)

Second, on the question of proportionality, the ISPs argued that blocking would prevent future access to non-tortious material by their subscribers. However, because only a fractional percentage of content referenced by The Pirate Bay was legitimate, the Court did not find this argument persuasive.

(c)

Third, although the website was unlikely to shift its focus to legal materials in the future, a blocking order could be revoked if it did.87

(d)

Fourth, blocking was ‘technically simple to perform’ and there was sufficient evidence that DNS blocking would cause technical disruptions.88

(e)

Fifth, the fact that blocking could be circumvented by some users was beside the point—a block would still erect an ‘additional barrier’ which would reduce the overall level of infringement.89

(f)

Sixth, the limitation on freedom of expression was justified within article 10(2) of the Convention as a measure necessary to protect the rights of others, since blocking orders were proportionate, prescribed by law, and made after a fair and impartial procedure.90

(g)

Seventh, a blocking order did not impose a general monitoring obligation because it could be implemented without examining the contents of transmissions and was limited to a specific website.91

(h)

Finally, the safe harbours contained in article 6:196c of the Dutch Civil Code did not preclude injunctive relief.

15.70 The Court interpreted Scarlet as requiring the Court to balance the fundamental rights of copyright owners against those of ISPs and their subscribers. However, it considered that it had reached an appropriate balance and declined to refer any question to the CJEU.

15.71  Terms of the order. The ISPs were ordered to block access to the IP addresses and domain names specified by the claimant. A notification mechanism was established for accommodating new internet locations which mirrored TPB, with the claimant to be ‘liable’ for any incorrect information.92 If the ISPs failed to block within 10 days, they would face a penalty of €10 000 per day of non-compliance.93 In view of the respondents being innocent of any wrongdoing, the appellant was only awarded costs taxed at the lowest level.94

15.72  Blocking orders against proxies. In March 2012, BREIN obtained a further injunction against the operator of http://tpb.dehomies.nl, a Dutch web-based proxy which assisted Ziggo’s subscribers to circumvent the Court’s injunction, and issued take-down notices to several other proxies. It appears that because these proxies did not mirror blocked material, they fell outside the terms of the original order. However, after the first injunction was obtained, most other proxy operators voluntarily ceased operation.95

15.73 On appeal, it was common ground that a ‘significant portion’ of the ISPs’ subscribers had downloaded and uploaded copyright works from TPB, that these acts involved copyright infringement by the users and operators of TPB, and that the ISPs were mere conduits and exempted from monetary liability.

15.74 In January 2014, the Court of Appeal handed down its decision,96 shortly after the opinion of the Advocate General in UPC Telekabel. The key battleground was proportionality. The ISPs argued that blocking would not be effective due to user and operator circumvention; the claimant relied upon a consumer survey in support of effectiveness.

15.75  Legal framework. The Court of Appeal overturned the decision of the court below and discharged the blocking order. Referring to the CJEU judgment in L’Oréal, the Court explained that any injunction must strike a ‘fair balance’, and must satisfy the requirements of article 3 of the Enforcement Directive. This includes weighing the applicable Charter rights. Thus, any order under article 26d must satisfy requirements of proportionality ‘and the constituent effectiveness requirement’.97 BREIN bore the onus of proving that blocking was proportionate and effective, since a different onus would not be fair.

15.76  Effectiveness. The Dutch Court of Appeal reached a strikingly different conclusion on effectiveness to that of the English High Court in Cartier and EMI.98 The Dutch Court commented that blocking could only have the potential to affect the behaviour of subscribers, not the operators of TPB, who were free to continue operating the website and making it available to others.99 Additionally, blocking would not necessarily achieve the objective being pursued. Subscribers would be likely to circumvent the block, or shift to different BitTorrent websites, which would not reduce copyright infringement. Studies were cited suggesting that ‘lazy’ TPB users switched to alternatives but continued to infringe, despite dedicated TPB proxies also being blocked.100

15.77  Empirical evidence. The evidence before the Dutch Court did not suggest that blocking was effective to reduce infringement. BREIN presented Alexa and Google Trends statistics showing that visits to TPB in the Netherlands had decreased since blocking had commenced. However, the ISPs’ traffic data showed that the overall relative level of BitTorrent traffic on their networks in the 3 months after blocking had remained consistent. While arguments on both sides were largely speculative, the Court’s overall impression was that blocking was ‘widely circumvented’.101 The overall number of infringements had increased, which is what mattered.102

15.78  Analysis of proportionality. BREIN argued that the block would cost the ISPs almost nothing, and was simple and convenient to implement. However, the Court reasoned that even if there were no costs or effort involved, there would still be an infringement of their freedom to carry on business. If the block was ineffective then it could not be proportionate. Even though the block could reduce infringements by the operators of TPB, these were considered relatively minor (eg communicating album artwork to the public) and therefore failed the test of proportionality. Accordingly, the Court concluded that the blocking order would not be consistent with the principles of proportionality and effectiveness.103

15.79 At the time of writing, the decision of the Court of Appeal is on appeal to the Supreme Court of The Netherlands (Hoge Raad der Nederlanden), which has referred questions to the CJEU related to the scope of primary infringement and the availability of a blocking injunction if the website operator does not engage in an act of communication to the public.

15.80 Although the Dutch government had pressured ISPs to implement content filtering for images depicting child abuse, in November 2010 a consortium of ISPs advised the Dutch Minister of Justice that blocking ‘can no longer serve as a reliable and effective way to contribute to fighting child pornography on the internet.’104 This was largely because, following law enforcement efforts, disseminators had shifted their activities to non-web protocols. They noted, for example, that the size of the daily IWF blocklist had reduced from 2,000 to under 400 websites since 2008, and that there were ‘almost no websites’ which would fall within the scope of the proposed filter. On one view, this merely demonstrates how effective blocking can be to prevent access to harmful websites via HTTP; however, in the ISPs’ view, this was a Pyrrhic victory in the context of the wider policy objective of reducing the dissemination of child abuse materials, since dissemination still continues—albeit in fora and protocols that are harder to monitor and control.

15.81  Copyright infringement. Courts in Denmark have issued blocking injunctions on several occasions. In 2006, the City Court of Copenhagen ordered Tele2, one of the country’s largest ISPs, to block access to Russian music site http://allofmp3.com/.105 According to a translated court report,106 the Court relied on evidence of Tele2’s market penetration and AllOfMP3’s popularity in Denmark to conclude that a ‘proportional share’ of Danish visitors to the website used Tele2’s access services. When those visitors downloaded infringing music from AllOfMP3, Tele2 itself infringed the claimants’ copyrights by reproducing the works ‘in the form of electronic signals conducted in the various routers during the transmission of data packages via the Internet’.107 Accordingly, Tele2 was considered a primary infringer and the requirements for injunctive relief were made out under section 642(1) of the Administration of Justice Act (Retsplejeloven).

15.82  Type of blocking. In AllOfMP3, the Court rejected the defendant’s argument that DNS blocking was ‘technically impossible’. The Court concluded that this was a viable method of preventing the infringements, since an ‘equivalent’ technique had been successfully used to block child abuse materials. Although some users might be able to circumvent a block, this did not render the injunction worthless.

15.83  Analysis of proportionality. The Court observed that article 8(3) of the Information Society Directive required the grant of an injunction. DNS blocking could be implemented ‘with no noticeable costs or administrative trouble’, and was in all the circumstances proportionate. For these reasons, Tele2 was ordered to stop making available and copying the applicants’ works, and to

take the necessary measures to prevent the access of [its] customers to the Internet website allofmp3 with associated subsites and subdomains.108

15.84 In August 2007, a Russian court held that AllOfMP3 did not infringe Russian copyright law.109 Nevertheless, a second blocking injunction was issued in August 2007 which obliged Tele2 to block access to http://mp3sparks.com/, a similar Russian music website.110

15.85 The third case was decided in February 2008, when the Frederiksberg County Court ordered DMT2 (a subsidiary of Tele2) to block access to TPB,111 which at the time was the twenty-third most popular website in Denmark.112

15.86  Primary infringement. The defendant sought unsuccessfully to distinguish AllOfMP3 and MP3Sparks on the basis that no infringing files were transmitted by the ISP in response to requests for TPB, since the website did not directly make available any copyright works (only hyperlinks to .torrent files, as explained in chapters 6 and 14).113 Bisgaard-Frantzen J rejected this argument, reasoning that TPB functioned as a search engine which caused the applicants’ copyright works to be transmitted on the defendant’s network.114 This allowed the Court to conclude that DMT2 was a contributory infringer and liable to injunctive relief under section 642(1).

15.87  Effectiveness. The Court did not examine the effectiveness or costs of blocking. It commented simply that there was insufficient evidence of ‘harm or drawbacks’ to the ISP which were disproportionate to the interests of the applicants. The Court ordered that DMT2 ‘take the necessary measures to prevent access [by its] customers to Internet website TPB and subsequent sub-pages and sub-domains’.115

15.88  Decision on appeal. The Court of Appeal for the Eastern Division upheld the trial judge’s conclusion that DMT2 contributed to infringements of the appellants’ copyright works and that the requirements for injunctive relief were satisfied.116

15.89Proportionality. First, the Court rejected the ISP’s argument that blocking was disproportionately costly or difficult, relying on expert evidence which concluded that ‘all [methods of blocking] offer the opportunity to effectively close down access to a single site’.117 Evidence on the cost of blocking was inconclusive.118 The Court also rejected the appellant’s submission that blocking would be disproportionate where the applicant had failed to proceed against a European website operator directly.

15.90Clarity. Second, the Court held that the terms of the injunction were sufficiently ‘clear and specific’.119 It rejected the appellant’s argument that the prohibition on ‘contributing to’ infringement was nebulous. Although the Court did not mandate any particular type of blocking, it did refer to the appellant’s existing DNS blocking system as evidence that the order was proportionate.

15.91  Decision of the Supreme Court. In 2009, the decision was appealed to the Supreme Court of Denmark, which upheld the conclusions of the Court of Appeal.120 According to translated court reports, the appellant’s main contention was that the injunction was disproportionate and ambiguous, contrary to section 646(2) of the Retsplejeloven. The respondents argued that DNS blocking (which the appellant had already implemented) was proportionate and complied with the terms of the injunction. The ISP Ansvarsgruppen, which represents the Danish ISP industry, presented evidence that DNS blocking was already implemented by most ISPs and that the operational costs would depend on the number of pages to be blocked and their popularity.

15.92 The Court agreed all the injunction required was that the ISP ‘hinder access for [its] customers to the website’.121 The terms left the ISP free to choose precisely how to hinder access. Even if blocking was imperfect DNS blocking was still proportionate to the respondents’ interests because the changes required were minor. However, the Court expressly did not comment on whether other types of blocking would be proportionate.

15.93  Subsequent developments. It is unclear how successful the Danish blocks have been. According to TPB’s own measurements, Danish traffic increased by 12 per cent in the weeks following the initial block.122 New domain names and hosts, such as thejesperbay.org and thepiratehay.org, were established for the purpose of providing equivalent access to Danish users, though these appear to be no longer operational. According to Alexa traffic statistics from early 2014, TPB ranked as Denmark’s fifty-eighth most popular website, outranking eBay, Bing, and IKEA,123 which suggests that the block has had some impact, but not been entirely successful in deterring access by Danish consumers.

15.94  Grooveshark. Website blocking orders have also been made against websites which are less obviously dedicated to infringement. On 20 February, the Bailiff’s Court of Frederiksberg ordered Three, a major telecommunications carrier, to block access to grooveshark.com on its customers’ mobile phone internet services.124 Grooveshark is a popular music streaming service which is widely used in the United States and throughout Europe. Its operators claim that the service is licensed and offers copyright owners the ability to remove material said to infringe copyright in a particular territory.

15.95 The Court appears to have rested its decision on the fact that many of the musical works on Grooveshark were not specifically licensed for online distribution in Denmark. Although some of the content was licensed by independent artists, a majority of Three’s users would infringe copyright in the applicants’ works when they accessed and used the service. The Court therefore issued an injunction requiring Three not to facilitate access to the Grooveshark service in its entirety. This decision effectively allowed copyright owners to bypass Grooveshark’s takedown mechanism.

15.96 In another case, Home A/S v Telenor A/S,125 the District Court of Frederiksburg issued a blocking order in order to uphold trade mark rights. The infringements were not counterfeits but cross-border sales by a Spanish real estate company under the sign HOMELIFE PROPERTIES and the URL www.homelifespain.com. An order was originally obtained against Homelife Properties SL, the Spanish company, requiring it to stop infringing the claimant’s rights in the HOME mark in Denmark. When the Spanish company did not comply, the claimant sought a DNS blocking order against Telenor to enforce the earlier injunction against the primary infringer.

15.97  Statutory basis. The basis of the injunction appears to have been section 642 of the Danish Code of Civil Procedure (entitled ‘Forbud’, or ‘prohibition’), which is the same statutory provision as is used in copyright blocking cases.126 It seems that the Court relied upon a Danish doctrine of Medvirkensbegrebet to hold that the doctrine ‘applies generally in intellectual property and e-commerce law [and] is not limited to one particular form of intellectual property’. The Court did not refer to the Enforcement Directive. The ISP was ordered to use DNS blocking ‘or other similar blocking measure’.127

15.98  The Pirate Bay. Although Sweden is commonly associated with P2P file sharing due to its connection with The Pirate Bay, relatively few blocking injunctions have been issued against Swedish ISPs. The most notable is Columbia Pictures Industries Inc v Portlane AB,128 in which the Stockholm Court of Appeal ordered the respondent, Black Internet, to ‘stop providing Internet access to the [The Pirate Bay] web site consisting of a web site including search engine and database functions on which torrent files may be stored and a tracker’.

15.99 In Columbia, the respondent had previously been supplying bandwidth and hosting services to TPB but had terminated its service following the District Court’s order in 2009. By the time the appeal was decided, the host no longer had any direct hosting relationship with the website. However, the respondent also operated as an ISP and supplied internet access to its subscribers, all of whom could access TPB. Accordingly, Black Internet decided to implement IP blocking to deny its subscribers access to the tracker website.

15.100 It appears that the respondent went beyond its literal obligations in an attempt to avoid liability for contempt. If the narrow interpretation of the injunction is correct, then this is not a website blocking order in a genuine sense, but rather an order to terminate the supply of hosting services—and one which, in the circumstances of the case, it was unnecessary to make. Meanwhile, in what appears to be a serious proposal, the operators of The Pirate Bay have announced that they will launch a distributed fleet of GPS-controlled aircraft drones to host their service over international waters.129 Given the need to assign IP addresses and hostnames to these drones, it is doubtful whether the proposal would necessarily evade a suitably worded blocking injunction.

15.101 In November 2015, the District Court of Stockholm refused to order Bredbandsbolaget, a Swedish ISP, to block its subscribers’ access to TPB. The claimants had sought an order requiring DNS blocking of 184 mirror sites and IP blocking of 37 IP addresses. The Court appears to have reached its conclusion on the basis that the ISP was not liable as an accessory for criminal copyright infringement by TPB’s operators, and therefore not amenable to an injunction. In the absence of a specific statutory power, the Court concluded that it did not have jurisdiction to make the order sought.130

15.102  Child abuse material. Like the United Kingdom, filtering of child abuse material is widespread, self-regulatory, and optional. The IT Crime Section of the Swedish National Police monitors illegal activity and periodically notifies ISPs of domain names which disseminate illegal material. Under the filtering implementation, users are redirected to a ‘stop page’ when they attempt to access a blocked website, which explains the reason for blocking and invites reports of overblocking.131

15.103  Criticism of the Swedish filtering scheme. The Swedish blacklist has been criticised as inaccurate: one study found that of the 167 listed websites just three contained abusive material.132 The list was also found to be out of date: according to the study, over half of the websites no longer existed. Of the three websites containing illegal content, all were able to be removed at source simply be emailing their overseas hosts (in two cases within 30 minutes and in the third within 3 hours). This suggests that investigators may be relying on the convenience of blocking as an enforcement strategy at the expense of easier and more effective strategies, such as takedown requests.

15.104  Peer-to-peer file-sharing. Website blocking in Finland has centred on a handful of notorious P2P file-sharing services. Early claims sought to enjoin ISPs to discontinue infringement by individual subscribers, but this practice has subsequently widened to include websites.

15.105 In Finnish Composers’ Copyright Society Teosto v EM, the claimants—a collecting society representing the recording industry—obtained an injunction against TeliaSonera which required the ISP to cease providing internet access to a private party who was making 10,058 musical works available to the public using DirectConnect, a P2P protocol.133 The claimants had previously obtained an order identifying the infringer from his IP address.134

15.106 TeliaSonera argued that terminating the user’s internet connection was disproportionate because it would prevent non-tortious uses of the connection and impact other household members’ fundamental rights. However, the Court rejected this argument, holding that cessation of access is reasonable where it is ‘sufficiently probable’ that substantial infringements have occurred.135 Since EM, similar interim orders have been made in at least three cases—in each, the subscribers in question were making available over 15,000 musical works via P2P software.136

15.107  The Pirate Bay. Subsequent cases have ordered ISPs to block specific websites. In October 2011, the District Court of Helsinki issued an injunction which required Elisa Oyj (‘Elisa’), Finland’s largest ISP, to block its subscribers’ access to 33 domain names and three IP addresses used by TPB. That website had a particularly high proportion of Finnish customers and was reportedly the twenty-seventh most accessed website in Finland.137

15.108  Statutory basis. The injunctions in Elisa and EM were grounded in section 60c(1) of the Finnish Copyright Act, which provides for a type of interim injunction known as keskeyttämismääräys (an injunction to discontinue). Under this sub-paragraph, the Court may

order the maintainer of the transmitter, server or other device or any other service provider acting as an intermediary to discontinue, on pain of fine, the making of the allegedly copyright-infringing material available to the public (injunction to discontinue), unless this can be regarded as unreasonable in view of the rights of the person making the material available to the public, the intermediary and the author.138

15.109 This type of injunction only applies where the infringement occurs by making copyright works available to the public. Section 60c provides for similar orders on an interim and ex parte basis in appropriate cases.139 It was uncontroversial that ISPs such as Elisa and TeliaSonera were ‘intermediaries’ within the meaning of section 60c(1). The main limitation is whether blocking is ‘reasonable’.

15.110  Primary infringement. The Court of Appeal in Elisa reasoned that a discontinuation injunction was a reasonable remedy in the circumstances. First, TPB was infringing the applicants’ copyright by communicating their works to the public. Moreover, the website targeted its service towards the Finnish public with local advertising and a large selection of infringing Finnish content. Elisa’s subscribers reportedly comprised the largest group of Finnish users of TPB.

15.111  Effectiveness. Second, blocking was reasonable because it was the only effective remedy in the circumstances. As in other jurisdictions, attempts to remove infringing content at its source had failed. The Court held that it was no answer to the claim that an injunction would also prevent infringement of other copyright owners’ works or be capable of circumvention. Applying similar reasoning to Arnold J in Newzbin2, the Court concluded that circumvention necessarily entails ‘some time, effort, skill and cost’, which makes it likely that infringement via the blocked website would diminish to some degree. None of the available blocking methods was so ineffective as to make the injunction unreasonable.140

15.112  Terms of the order. The Court held that the principle of proportionality requires blocking to go no further than is necessary to protect the applicants’ intellectual property rights. The Court ordered that Elisa should implement DNS blocking and IP blocking, and listed all the hostnames and IP addresses which should be included. Although a general order would offer flexibility, it would introduce uncertainty and create a risk of over-compliance.

15.113  Orders against other ISPs. Elisa unsuccessfully appealed the decision to the Court of Appeal, which ordered it to implement the block in January 2012. Following the trial decision, IFPI and the Copyright Information and Anti-Piracy Centre made similar claims for injunctive relief against TeliaSonera AB and DNA Oy, the second and third largest Finnish ISPs, respectively.141

15.114 Section 60c provides a clear statutory basis for issuing website blocking injunctions against intermediaries. Equally clear is that Finnish claimants are increasingly availing themselves of this power. While courts have so far granted every application for a blocking injunction, this probably reflects, as Norrgård argues, the claimants’ choice of obvious infringers such as TPB rather than any systemic bias in favour of copyright owners.142 Further, Finnish courts appear to have undertaken welcome assessments of overblocking, effectiveness, and the competing rights of ISPs and users. Norrgård does, however, make three criticisms of the provision.

15.115  Breadth of discretion. First, as a general power, it leaves much to the discretion of the Court in its assessment of ‘reasonableness’. This creates a degree of uncertainty for ISPs and risks neglecting specific rights and freedoms in the broad assessment of proportionality.

15.116  Standard of proof. Second, the required standard of proof is unclear and does not require claimants to demonstrate any probability of success above a mere allegation of infringement.

15.117  Substantiality of infringement. Third, like English law, the degree of infringing activity is not directly considered, which makes it difficult to assess whether the quantity of infringing material accessible on a website is sufficient to render blocking proportionate.

15.118  Subsequent developments. Following the decision in Elisa, one of its subscribers brought an action challenging the constitutionality of the order.143 According to one translation of the pleadings, his argument was that the injunction also blocked access to non-infringing materials which were distributed using TPB, which amounts to prior restraint contrary to the Finnish Constitution. The Finnish Copyright Committee has also proposed amending the Copyright Act to introduce the power to grant final blocking injunctions against intermediaries.144

15.119  Administrative blocking. The Finnish experience with blocking by administrative authorities is also instructive. Under section 3 of the Laki Apsipornografian Levittämisen Estotoimista 2006 (FI),145 the National Bureau of Investigation may issue blocking orders to prevent the dissemination of child abuse materials. The central blacklist is periodically distributed to ISPs, who are invited (but not compelled) to block its contents.

15.120  Blocking of foreign websites. In Nikki v National Bureau of Investigation, the Supreme Administrative Court held that the 2006 Act only permits blocking of foreign websites. Relying on extrinsic materials, the Court reasoned that the Act was not intended to apply to domestic websites, which could be targeted by takedown and other means.146 The appellant’s website, which voiced criticism of the blocking regime, had previously been added to the blacklist but was hosted locally.

15.121 Following the decision, it emerged that the blacklist mostly comprised material which was not illegal, including Google search results for gay pornography and the homepage of the World Wide Web Consortium. According to the claimant, only 12 websites out of 1,000 appeared to contain illegal material.

15.122  The Pirate Bay. Norwegian courts initially refused to order ISPs to block TPB. In Nordic Records Norway AS v Telenor ASA, the Borgarting Lagmannsretts (Court of Appeal) affirmed a decision of the District Court of Asker and Barum to refuse injunctive relief against Telenor, a large Norwegian ISP.147 The applicants had sought an interim injunction to require the ISP to cease ‘contributing to’ infringements committed by its subscribers using The Pirate Bay.

15.123  Insufficient statutory basis. Based on translated materials, the Court appears to have reasoned that the Norwegian Copyright Act did not support a website blocking injunction if Telenor was not itself infringing the applicants’ copyrights. Referring to article 16 of the E-Commerce Act, the Court noted that Telenor owed no duties to remove or block the tortious transmissions of third parties, since it was not a content host. Accordingly, it could not be said that Telenor’s failure to block TPB created any liability for the acts of its users, and the applicants would need to target individual file-sharers if they wished to obtain injunctive relief.

15.124  Lack of transposition. Notably, article 8(3) of the Information Society Directive had not been transposed into Norwegian law, which may explain the absence of a basis forinjunctive relief against intermediaries. The decision highlights the divergent outcomes in blocking cases concerning the same website in different member states.

15.125  Transposing measures. In 2013 the Norwegian Parliament enacted amendments to the Norwegian Copyright Act which provide for copyright blocking orders in a new article 56c.148 In September 2015, Telenor and seven other ISPs were ordered to block access to TPB and a number of mirror sites using DNS blocking, as well as six other BitTorrent trackers whose proportion of infringing content was between 75 and 99 per cent. An initial blocking term of 5 years was imposed. The costs of blocking (around £24,500) and the action were to be borne by the operators of the target websites.149

15.126  Kino.to. In Constantin Film Verleih GmbH v UPC Telekabel Wien GmbH, the Handelsgericht Wien (Commercial Court of Vienna) issued an injunction against a major Austrian ISP requiring it to block access to http://kino.to/.150 The applicants, represented by the Austrian Association for Anti-Piracy (‘VAP’) argued that the website linked to over 30,000 unlicensed films and television programmes. According to translated court documents, the applicants cited the example of a film entitled Das weiße Band by Austrian director Michael Haneke, which was accessible to UPC subscribers who accessed the Kino website.151 Kino is hosted anonymously in Russia using a Tongan domain name, which made it impractical to target the website operator, domain registrar, or host. In these circumstances, either DNS or IP blocking were considered proportionate—there being no other effective remedy available to the copyright owners—but not mechanisms which required the ISP to monitor subscribers’ communications, such as DPI-based blocking.

15.127  Safeguards. This reasoning largely reflects that of the Dutch appeal court in Ziggo. However, the Viennese Court added an additional qualification, requiring the applicants to give a €50,000 undertaking as to damages. The security deposit was said to cover economic loss that UPC might suffer if it successfully appealed the blocking order. Meanwhile, the Kino domain name appears to have been seized. All visitors to the website now receive the following message in German:

This website’s domain name has been closed on suspicion of forming a criminal conspiracy for the commission of commercial scale copyright infringement. Several operators of KINO.TO were arrested. Internet users who illegally pirate copies of films must reckon with a criminal prosecution.152

15.128 According to media reports, the domain name was seized in coordinated raids by German, French, Spanish, and Dutch police.153 Thirteen suspects were arrested and the domain name was redirected to a police server in France, making the website unlikely to return.

15.129 In July 2015, the Commercial Court of Vienna (Handelsgericht Wien) ordered A1 Telekom, an Austrian ISP, to use DNS filtering to block access to four BitTorrent indices: 1337x.to, h33t.to, thepiratebay.se and isohunt.to.154

15.130  Administrative blocking. In January 2012, the Partido Popular enacted the Ley de Economía Sostenible (also known as the Ley Sinde), which creates a statutory authority that will determine intellectual property complaints about allegedly infringing websites using an expedited administrative process.155 Complainants are required to satisfy three elements under the new procedure, which is found in article 158.4 of the Ley de Propiedad Intelectual.

15.131  Identification of infringing content. First, complainants must ‘specifically identify the infringing content provided or to which access is facilitated’ by an information service provider.156

15.132  Identification of rights infringed. Second, they must state the works whose copyright is said to be infringed, establish standing, and provide data showing that the service provider provides communication services to access the material.157

15.133  Voluntary or mandatory blocking. Third, if the service provider does not voluntarily block access, a judge will be asked to rule on whether an infringement has occurred. If it has, the tribunal can order the service provider to ‘interrupt the provision of the information society service that violates these rights’. The intermediary must then implement the block within 72 hours of notification. Some limitations are recognised. The procedure must ‘conform to the principles of legality, objectivity, proportionality and opposition’, and any blocking orders must be objective, proportionate, and non-discriminatory.158

15.134  Constitutional challenge. The legislation was supposed to enter into force on 1 March 2012, but the Spanish Supreme Court granted a request by the Association of Web Users to suspend application of the law until its constitutionality could be determined.159 Community opposition included calls for a boycott of authors who supported the legislation.160 Earlier, diplomatic cables published by Wikileaks revealed that the United States government had threatened to include Spain in the Special 301 ‘Watch List’ unless it strengthened internet copyright enforcement.161 This revelation threatened to derail the Sinde process in late 2011, but the legislation was still enacted in January 2012.162

15.135 The measure has been criticised as ineffective on the basis that the scope of primary liability remains narrow compared to other European jurisdictions.163 The legislation was cited by Ofcom as an example of European legislation to introduce a blocking scheme.164

15.136  The Pirate Bay. Website blocking is an established remedy in Italy. In Procuratore della Repubblica presso il tribunal di Bergamo v Kohnisoppi,165 the Corte Supreme di Cassazione (Supreme Court of Cassation) upheld a decision by the Tribunale di Bergamo to order all ISPs operating within Italy to block access to TPB by their subscribers. Mr Kohnisoppi was one of the administrators of TPB whose assets were seized in an Italian criminal proceeding.

15.137  Statutory basis. The Court relied upon articles 14 and 15 of the Law No 70 of 9 April 2003 to conclude that the blocking order (inibitoria), although targeting an intangible asset and not a physical thing (carattere reale), was a reasonable precautionary measure which was open to the court in the exercise of its criminal jurisdiction to seize property. Like other European courts, the Court assessed the measure against the principle of proportionality, though here with the added effect of article 21 of the Italian Constitution, which protects freedom of expression.

15.138  Proportionality. Because the injunction was ancillary to the lawful seizure of a related domestic website by the authorities as part of a criminal investigation, blocking access to the related foreign website was considered necessary and proportionate—even though the ISPs were estranei al reato (unrelated to the wrong). Accordingly, the Court overturned the decision of the intermediate court, and reconfirmed its decision when the case was appealed again in 2010.166 According to the Guardia di Finanza, the number of Italian visitors to The Pirate Bay fell from 800,000 in 2010 to just over 200,000 in 2011.

15.139  BitTorrent websites. Following the decision in Kohnisoppi, Italian authorities have granted blocking injunctions in a number of cases. In April 2011, a prosecutor in Cagliari ordered all Italian ISPs to block access to http://btjunkie.org/, another BitTorrent tracker which had 550,000 Italian users at the time.167 The operator of BTjunkie then registered http://proxyitalia.com/, which offered a free web-based proxy with which Italian users could evade DNS blocking. In July 2011, the Cagliari deputy prosecutor issued a blocking order against the proxy host and commenced proceedings against ISPs who had failed to implement the original block.168

15.140  Online gambling. In 2011, L’Amministrazione Autonoma dei Monopoli di Stato (‘AAMS’) ordered ISPs to block access to 3,879 websites which offered unlicensed gaming and wagering services.169

15.141  The AGCOM proposal. Set against this expansion of judicial and administrative blocking remedies, in July 2011 regulators withdrew controversial plans for an expedited blocking procedure. The Autorità per le Garanzie nelle Comunicazioni (‘AGCOM’) had originally proposed a procedure by which it could order ISPs to block access to any foreign website which infringes copyright.170

15.142 Under the proposal, a copyright owner could apply directly to AGCOM for a website to be blocked; if the request ‘appeared reasonable’, AGCOM would give five days for the website operator to file a defence, after which it could order all Italian ISPs to prevent access. Blocking was said to be limited to ‘extreme cases’ following an adversarial hearing. AGCOM prescribed IP blocking, which was already used to block gambling and child abuse websites.171 However, following public outcry, AGCOM announced that it was suspending the proposal and limiting its enforcement activities to ‘selective removal’ of infringing content.172

15.143  BitTorrent websites. The Greek courts have treated copyright blocking orders with scepticism. In one case brought by a national collecting society, the Athens Court refused to order Greek ISPs to block access to twelve copyright-infringing websites, including TPB, ISO Hunt, 1337x.org, H33T, and KAT. An English translation of the decision is unavailable; however, it appears that the Court based its reasoning upon an analysis of proportionality. In particular, it considered that the relief sought would interfere with third parties’ constitutional rights to freedom of information, the right to participate in the information society, the right to data protection, the respondents’ freedom of business under article 16 of the Charter, and the requirements of necessity and effectiveness.

15.144  Analysis of proportionality. According to a translation of the judgment the Court explained that blocking measures would operate indiscriminately, and would therefore interfere with lawful content and browsing, including by potentially introducing errors and delay in transmissions. Additionally, because the target websites could circumvent the order by moving to new IP addresses, the effectiveness of blocking would be limited. The Court also noted that blocking would be contrary to ‘the basic principle of Internet neutrality, which provides that all information must be handled without discrimination by ISPs, regardless of its nature and purpose’.173 On balance, the relief would bring limited benefits but involve severe limitations upon fundamental rights and the development of the information society. Accordingly, the measure was held to be disproportionate.

15.145 These conclusions are in stark contrast to those drawn by English courts in relation to the same target websites. However, it is unclear from the reports of the decision whether the blocking systems available to the respondents were comparable to those of English ISPs.

Notes
1

See, eg, in Italy, Financial Law 266/2005 (IT) art 1, para [535–58]; in Romania, Bill No L5/2011 amending the Law on Preventing and Combatting Pornography No 196/2003 art 14; in Belarus, Presidential Decree of 1 February 2010 No 60 on Measures to Improve the National Internet Sector and Law of 25 November 2011 No 317-3 on Amendments to the Code of Belarus on Administrative Offences; in Estonia, Gambling Act 2008 (EE); and in Poland, Act on Gambling Games of 19 November 2009 No 201 Item 1540 (PL).

2

Twentieth Century Fox Film Corp v British Telecommunications plc [2011] EWHC 1981 (Ch), [96]–[97] (Arnold J) (‘Newzbin2’).

3

See, eg, Lúthersson v Performing Rights Society of Iceland, Case No 214/2009 (Unreported, Hæstiréttur Íslands, 11 February 2010) (enjoining access to the BitTorrent tracker ‘ISOTorrent’).

4

See, eg, Nikhil Pahwa, ‘Indian Music Industry Gets Court Orders for Blocking 104 Music Sites’ (Medianama, 15 March 2012) <http://www.medianama.com/2012/03/223-india-music-block/> (enjoining access by 387 Indian ISPs using either DNS, IP, or DPI-based URL blocking).

5

See section 2.5 for discussion of the claim against The Pirate Bay in the Dutch courts.

6

[2010] ECDR 17 (‘UPC’).

7

UPC, 475 (Charleton J).

8

UPC, 475–6. See also TorrentFreak, ‘Eircom Pirate Bay Blockade Takes Effect’ (1 September 2009) <http://torrentfreak.com/eircom-pirate-bay-blockade-takes-effect-090901/>.

9

UPC, 477 (Charleton J).

10

Copyright Regulations 2012 (IE) reg 2(a). An identical provision applies to performers’ and moral rights: Copyright and Related Rights Act 2000 (IE) s 205(9A).

11

Copyright Regulations 2012 (IE) reg 2(a). See also Copyright and Related Rights Act 2000 (IE) ss 40(5A)(b).

12

Department of Jobs, Enterprise and Innovation, ‘Copyright SI Signed and Consultation Process Launched on Copyright and Innovation—Minister Sherlock’ (Press Release, 29 February 2012) <http://www.djei.ie/press/2012/20120229c.htm>.

13

See, eg, Paul Quigley, ‘Column: Will Ireland Block the Internet to Save CDs?’ (The Journal, 19 January 2012) <http://www.thejournal.ie/readme/column-will-ireland-block-the-internet-to-save-cds/>; Dave Neal, ‘Irish SOPA is Now Law’ (The Inquirer, 1 March 2012) <http://www.theinquirer.net/inquirer/news/2156333/irish-sopa-law>.

14

[2015] IEHC 317 (‘Sony v UPC’).

15

See chapter 6, section 3 for discussion of graduated response schemes in the United Kingdom.

16

Sony v UPC, [146], [148] (Cregan J).

17

Sony v UPC, [243] (Cregan J).

18

La Ligue Contre le Racisme et l’Antisémitisme v Yahoo! Inc (Tribunal de Grande Instance de Paris, 22 May 2000) (Richard Salis trans) <http://juriscom.net/txt/jurisfr/cti/yauctions20000522.htm> (‘Yahoo!’).

19

Yahoo! Inc v La Ligue Contre Le Racisme et L’Antisémitisme, 169 F Supp 2d 1181, 1184–5, 1194 (ND Cal, 2001).

20

Jon Henley, ‘Yahoo! Cleared in Nazi Case’ (The Guardian, 12 February 2003, London).

21

Yahoo! Inc v La Ligue Contre le Racisme et l’Antisémitisme, 379 F 3d 1120 (9th Cir, 2004); aff’d en banc, 433 F 3d 1199 (9th Cir, 2006); cert denied, 126 S Ct 2332 (2006).

22

La Ligue Contre le Racisme et l’Antisémitisme v Yahoo! Inc, Case No 05308/00 (County Court of Paris, 20 November 2000).

23

Re Unlawful Material Provided on Foreign Internet Site [2009] ECC 8 (French Cour de Cassation, 19 June 2008) (‘Aaargh’).

24

Law for Trust in the Digital Economy, Law No 2004-575 of 21 June 2004 (FR) (‘Law for Trust in the Digital Economy’).

25

Eric Pfanner, ‘Court Orders French Cop-Watching Site Blocked’ (The New York Times, 16 October 2011) <http://nytimes.com/2011/10/17/technology/court-orders-french-cop-watching-site-blocked.html>.

26

Gueant v La Société Free [2011] 11/58052 (Unreported, 14 October 2011, Provost-Lopin VP, Sauteraud VP, and Bourla J) 9–10 (‘Gueant’).

27

Gueant, 12.

28

Gueant, 12–13.

29

(Unreported, Cour de Cassation, 3 May 2012).

30

Nicolas Sarkozy, ‘Wishes to the Cultural World’ (Speech delivered in Paris, 7 January 2010).

31

Law on Guidelines and Programming for the Performance of Internal Security 2010 (FR) art 4(1).

32

Explanatory Memorandum, Michèle Alliot-Marie, Law on Guidelines and Programming for the Performance of Internal Security, No 1697/2010.

33

Law on the Introduction of Competition and Regulation in the Sector of Gaming and Online Gambling (FR), Law No 2010-476 of 12 May 2010.

34

Case No 11/52766 [2011] (Unreported, Tribunal de Grande Instance de Paris, 28 April 2011).

35

Decision No 2011-625 DC, Conseil Constitutionnel, 10 March 2011, [7]–[8]. See also Declaration of the Rights of Man and the Citizen 1789 (FR) art 11.

36

Monica Horten, ‘France Proposes Industrial-Scale Filtering’ (Iptegrity, 17 June 2011) <http://iptegrity.com/index.php/france/658-france-proposes-industrial-scale-content-filtering>.

37

Law No 2004-575 of 21 June 2004 on confidence in the digital economy, art 6-1.

38

Decree No 2015-125 of 5 February 2015 concerning the blocking of websites causing or glorifying acts of terrorism and websites disseminating child pornography. The authority is the National Police Central Office for the Fight against Information and Communications Technology Crime.

39

Decree No 2015-125, arts 1, 3.

40

Decree No 2015-125, art 4.

41

Decree No 2015-125, art 6.

42

Case No 14/03236 (Tribunal de Grande Instance de Paris, Third Chamber, 4 December 2014).

43

Case No 6K 5404/10, Deutsche Telekom AG v District Government of Düsseldorf (12 January 2012, Administrative Court of Cologne).

44

Der Spiegel Online, ‘Telecom Must Not Block Illegal Gambling Sites’ (13 January 2012) <http://www.spiegel.de/netzwelt/netzpolitik/0,1518,808875,00.html>.

45

Case No 27K 5887/10 (8 November 2011, Administrative Court of Düsseldorf), [49], [71], [76].

46

Case No 2-06 0477/07, Kirchberg Logistik GmbH v Arcor (17 October 2007, Landgericht Frankfurt).

47

See Stefan Krempl, ‘Arcor Must Not Block YouPorn’ (Heise Online, 15 April 2008) <http://heise.de/newsticker/meldung/Arcor-muss-YouPorn-nicht-mehr-sperren-199672.html> (trans).

48

See, eg, Case No 14O 125/07, Kirchberg Logistik GmbH v KieINET (23 November 2007, Landgericht Kiel); Case No 27K 3883/11, Vodafone D2 GmbH v District Government of Düsseldorf (29 November 2011, Administrative Court of Düsseldorf).

49

Case No 28O 362/10, EMI Music Germany GmbH & Co KG v HanseNet Telecommunications Ltd (31 August 2011, District Court of Cologne) (‘EMI v HanseNet’).

50

EMI v HanseNet, [114], [116]–[117].

51

EMI v HanseNet, [119]–[122].

52

Case No 5U 36/09, §(bbb).

53

Case 5U 68/10 (2014) GRUR-RR 140 (Hanseatisches Oberlandesgericht Hamburg, 21 November 2013).

54

See, eg, Case No 5U 36/09 (2011) BeckRS 22463 (Hanseatic Superior District Court Hamburg, 22 December 2010).

55

3dl.am Case, §II(5)(g)–(g)(aaa) (unofficial trans).

56

Case No I ZR 174/14 (Federal Supreme Court, 26 November 2015), [21]–[27] (‘Goldesel.to’).

57

Goldesel.to, [81]–[88].

58

See Egan Orion, ‘German Parliament Passes Internet Censorship Bill’ (19 June 2009) <http://theinquirer.net/inquirer/news/1356941/german-parliament-passes-internet-censorship>.

59

European Digital Rights, ‘German Law on Internet Blocking Challenged in Constitutional Court’ (23 February 2011) <http://edri.org/edrigram/number9.4/germany-constitutional-case-web-blocking>.

60

European Digital Rights, ‘German Web Blocking Law Repealed’ (14 December 2011) <http://edri.org/edrigram/number9.24/german-internet-blocking-law-repealed>.

61

Case No 04/8975/A, Belgian Society of Authors, Composers, and Publishers (SABAM) v Scarlet SA [2007] (Unreported, District Court of Brussels, 29 June 2007) (Mady et al, trans) <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1027954> (‘Scarlet District Court’).

62

Law of 30 June 1994 on Copyright and Related Rights (Moniteur Belge, 27 July 1994, 19297) art 87(1).

63

Scarlet District Court, 5.

64

Case No C-70/10, Scarlet Extended SA v Société Belge des Auteurs, Compositeurs et Éditeurs SCRL (SABAM), EU:C:2011:771 [2011] ECR I-11959, [39]–[40] (‘Scarlet’). See also chapter 13, section 2.2.

65

Scarlet, [41], [43], [46]; Charter arts 16, 17(2).

66

Scarlet, [48].

67

See chapter 18, section 3.4.

68

Charterarts 8, 11. See also European Convention arts 8, 10.

69

Scarlet, [50]–[51].

70

Cf Data Protection Act 1998 (UK) s 35; The Rugby Football Union v Viagogo Ltd [2011] EWHC 764, [74] (Tugendhat J) tortfeasor has no reasonable expectation of privacy); aff’d [2011] EWCA Civ 1585, [28] (Longmore LJ).

71

Scarlet, [30]–[32].

72

Scarlet, [32].

73

Scarlet, [54].

74

Belgian Anti-Piracy Foundation v Telenet (Unreported, Court of Appeal of Antwerp, 4 October 2011) <http://klantenservice.telenet.be/content/waarom-blokkeert-telenet-the-pirate-bay>.

75

See Arnoud Wokke, ‘Judge: Belgian ISPs Do not Block The Pirate Bay’ (Tweakers.net, 10 July 2010) <http://tweakers.net/nieuws/68481/>.

76

See Jeroen Baert, ‘How to Unblock The Pirate Bay’ (TorrentFreak, 4 October 2011) <http://torrentfreak.com/how-to-unblock-the-pirate-bay-111004/>

77

TorrentFreak, ‘The Pirate Bay Adds Domain to Bypass Court Order’ (5 October 2011) ‘<http://torrentfreak.com/the-pirate-bay-adds-domain-to-bypass-court-order-111005/>.

78

Case C-360/10, EU:C:2012:85, Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV [2012] (16 February 2012) (‘Netlog’).

79

Netlog, [44]–[52].

80

Case No 365643 [2010] KG ZA 10-573, LJN BN1445 (trans) (‘Ziggo Trial’).

81

Ziggo Trial, [4.11].

82

Ziggo Trial, [4.12].

83

Stichting Bescherming Rechten Entertainment Industrie Nederland (BREIN) v Neij [2009] (Unreported, Rechtbank Amsterdam, 30 July 2009).

84

Ziggo, Case No 374634 [2012] HA ZA 10-3184, LJN BV0549 (Unreported, Rechtbank ‘s-Gravenhage, 11 January 2012) (trans) <http://www.hssph.net/misc.html>.

85

Ziggo, [4.10].

86

Ziggo, [4.13].

87

Ziggo, [4.28]–[4.29].

88

Ziggo, [4.31].

89

Ziggo, [4.36].

90

Ziggo, [4.40]–[4.42].

91

Ziggo, [4.46].

92

Ziggo, [4.56].

93

Reuters, ‘Dutch Court Orders Block on Pirate Bay Website’ (11 January 2012) <http://reuters.com/article/2012/01/11/us-dutch-internet-ban-idUSTRE80A1AE20120111>.

94

Ziggo, [4.63].

95

Wilbert de Vries, ‘Stichting Brein Sommeert Pirate Bay-Proxy’s Omzeiling te Staken’ (Tweakers.net, 21 March 2012) <http://tweakers.net/nieuws/80830/>.

96

Ziggo BV & XS4All Internet BV v Stichting Bescherming Rechten Entertainment Industrie Nederland (BREIN), Case No 200.105.418/01 (Gerechtshof den Haag, 28 January 2014) (‘Ziggo (CA)’).

97

Ziggo (CA), [5.3]–[5.6].

98

See chapter 14, paras 14.123–14.133.

99

Ziggo (CA), [5.11].

100

Ziggo (CA), [5.12].

101

Ziggo (CA), [5.15(ii)].

102

Ziggo (CA), [5.21]. The Court relied upon the same academic study (the ‘Baywatch’ report) as the English court in Cartier yet reached the opposite conclusion.

103

Ziggo (CA), [5.22], [5.25], [5.26].

104

Letter, Arie van Bellen to Mr L W Opstelten, Minister of Justice, ‘Voortgang Blokkeren Kinderporno’ (18 November 2010, Den Haag) <https://www.bof.nl/2011/03/07/dutch-providers-abandon-ineffective-web-blocking/> (trans).

105

IFPI Denmark v Tele2 A/S, Case F1-15124/2006 (City Court of Copenhagen) (‘AllOfMP3’).

106

Marie Andersen, ‘Translation: Tele2 vs IFPI’ (Piratgruppen, 2 November 2006) <http://www.piratgruppen.org/spip.php?article750> (‘Tele2 v IFPI’).

107

Tele2 v IFPI, [2], [4].

108

Tele2 v IFPI, [14].

109

Reuters, ‘Russian Court Acquits Music Site Owner’ (15 August 2007) <http://www.reuters.com/article/2007/08/15/us-russia-website-idUSL1585563020070815>.

110

IFPI Denmark v Tele2 A/S, Case FS-7509/2007 (Bailiff’s Court of Frederiksberg, 15 August 2007) (‘MP3Sparks’).

111

IFPI Denmark v DMT2 A/S, Case FS-14324/2007 (Bailiff’s Court of Frederiksberg, 5 February 2008) (‘IFPI v DM2’).

112

IFPI v DM2, 9 (trans).

113

See chapter 14, section 3.6; chapter 6, section 2.1.

114

IFPI v DM2, 9–10 (trans).

115

IFPI v DM2, 11 (trans). See Reuters, ‘Danish ISP Shuts Access to File-Sharing Pirate Bay’ (4 February 2008) <http://reuters.com/article/2008/02/04/us-denmark-piratebay-idUSL0480268320080204>.

116

Sonofon A/S (formerly DMT2 A/S) v IFPI Denmark, Appeal Case No B-530-08 (26 November 2008, Chamber of the Eastern Division) 11–12 (trans) (‘Sonofon’).

117

Sonofon, 5 (trans).

118

One witness estimated the cost at between ‘one million’ and ‘a few millions [Danish Crowns]’ per year (£120,000–£360,000), depending on the method of blocking used: Sonofon, 8 (trans).

119

Sonofon, 12 (trans).

120

Telenor (formerly DMT2 A/S Sonofon A/S) v IFPI Denmark, Case 153/2009 (27 May 2010, Supreme Court of Denmark) (‘Telenor v IFPI Denmark’).

121

Telenor v IFPI Denmark, 4.

122

Jacqui Cheng, ‘Pirate Bay to IFPI: Danish Ban Has Led to Even More Traffic’ (Ars Technica, 12 February 2008) <http://arstechnica.com/tech-policy/news/2008/02/pirate-bay-to-ifpi-danish-ban-has-led-to-even-more-traffic.ars>.

123

Alexa Inc, ‘Top Sites in Denmark’ (1 March 2012) <http://alexa.com/topsites/countries;2/DK>.

124

RettighedsAlliancen v Hi3G Denmark ApS, Case No FS 11-18685/2011 (20 February 2012).

125

Case No FS J11-16822/2012 (Unreported, 14 December 2012, Retten på Frederiksberg).

126

See, eg, Sonofon A/S v IFPI Denmark (Unreported, Court of Appeals (Eastern Division), 26 November 2008) 8 <http://hssph.net/Sonofon_IFPI_Cour_of_Appeals-E.Div26Nov2008_PirateBay.pdf>.

127

Kasper Jensen Villum, ‘DNS Blocking Continues: Real Estate Gets Slowed Competitor’ (19 December 2012) <http://www.computerworld.dk/art/223105/dns-blokeringer-fortsaetter-ejendomsmaegler-faar-bremset-konkurrent>.

128

[2010] (Unreported, Stockholm Court of Appeal, 4 May 2010) (‘Columbia’).

129

The Local Europe AB, ‘Pirate Bay to Launch Fleet of “Aerial Server Drones”’ (21 March 2012) <http://www.thelocal.se/39796/20120321/>.

130

Case No T 15142-14, Universal Music Aktiebolag v B2 Bredband AB (Stockholms tingsrätt, 27 November 2015).

131

Marie Eneman, ‘Internet Service Provider (ISP) Filtering of Child-Abusive Material: A Critical Reflection of its Effectiveness’ (2010) 16 Journal of Sexual Aggression 223, 224.

132

See Alvar Freude, ‘Blacklists of Denmark and Sweden Analysed’ (28 September 2010) <http://ak-zensur.de/2010/09/29/analysis-blacklists.pdf>.

133

Case No 08/3008 (Unreported, Decision No 18661, District Court of Helsinki, 23 June 2008).

134

Copyright Act 1961 (FI) s 60a (‘Finnish Copyright Act’), which provides for disclosure that is broadly analogous to a Norwich Pharmacal order.

135

Marcus Norrgård, ‘Blocking Web Sites—Experiences from Finland’ (Unpublished manuscript, 1 February 2012) 7 <http://ssrn.com/abstract=1997103>.

136

See Finnish Composers’ Copyright Society Teosto v TeliaSonera AB, Case No H11/11165 (Unreported, District Court of Helsinki, Decision No 17230, 9 May 2011) (19,957 works); Case No H11/11018 (Unreported, District Court of Helsinki, Decision No 172228, 9 May 2011) (21,174 works); Case No H11/11163 (Unreported, District Court of Helsinki, Decision No 172229, 9 May 2011) (15,762 works).

137

Elisa Oyj, ‘Temporary Blocking of Pirate Bay Introduced in Elisa’s Network’ (11 January 2012) <http://elisa.fi/ir/pressi/index.cfm?t=100&o=5130&did=17728>.

138

Norrgård (trans), n 135.

139

See Copyright Act (FI) sub-ss 60(c)(2), (c)(3).

140

Norrgård (trans), n 135, 9.

141

Victoria Slind-Flor, ‘Elisa Blocks Pirate Bay Website Pending Finnish Court Appeal’ (Bloomberg, 10 January 2012) <http://mobile.bloomberg.com/news/2012-01-10/microsoft-yahoo-corbis-woolworth-intellectual-property>.

142

Norrgård (trans), n 135, 11.

143

Oikaisuvaatimus Päätöksestä 4731/607/11P, Antti Laine (13 February 2012).

144

See proposed Copyright Act (FI) s 56(g).

145

Law on Prevention Measures against the Dissemination of Child Pornography 2006 (FI).

146

Case No 11/0403/3 (Unreported, Administrative Court of Helsinki, 5 February 2011) (trans).

147

Case No TAHER-2009-96202, Tingrettsavgjørelser (Unreported, Borgarting Lagmannsretts, 9 February 2010) <http://www.hssph.net/misc.html#Cases> (trans).

148

Act of 31 May 2013, No 26 (in force 1 July 2013).

149

Case No 15-067093TVI-OTIR/05, Warner Bros Entertainment Norge AS v Telenor Norge AS (Oslo tingrett, 1 September 2015).

150

(Unreported, Handelsgericht Wien, 17 May 2011).

151

Robert Briel, ‘Anti-Pirate Injunction against UPC Austria’ (Broadband TV News, 18 May 2011) <http://www.broadbandtvnews.com/2011/05/18/anti-pirate-injunction-against-upc-austria/>.

152

Anonymous, ‘Die Kriminalpolizei weist auf Folgendes hin’ (23 March 2012) <http://kino.to/>.

153

Scott Roxborough, ‘European Police Shut Down Internet Pirate Kino.to’ (8 June 2011) <http://hollywoodreporter.com/news/european-police-shut-down-internet-196223>.

154

IFPI Austria, ‘Website “The Pirate Bay” Ordered to be Blocked’ (31 July 2015) <http://www.ifpi.at/?section=news&id=202>.

155

Royal Decree 1889/2011 of 30 December 2011, regulating the functioning of the Commission on Intellectual Property ch VII, arts 15–24 (‘Decree 1889/2011’).

156

Decree 1889/2011 art 15(3) (trans).

157

Decree 1889/2011 art 17(2) (trans).

158

See Decree 1889/2011 arts 15(4), 22(3) (trans).

159

Andres Cala, ‘Sinde Law Piracy Battle Headed to Spanish Supreme Court, with Global Implications’ (Billboard.biz, 10 February 2012) <http://www.billboard.biz/bbbiz/industry/legal-and-management/sinde-law-piracy-battle-headed-to-spanish-1006158352.story>.

160

See No Les Votes, ‘Boycott’ (10 January 2012) <http://wiki.nolesvotes.org/wiki/Boicot>.

161

Cable 142920, Madrid to Washington DC, 25 February 2008, [17]–[20].

162

BBC, ‘Anti-internet Piracy Law Adopted by Spanish Government’ (3 January 2012) <http://bbc.co.uk/news/technology-16391727>.

163

Pedro Letai, ‘A Futile Attempt: Spain Implements Web-Blocking Regulation’ (Kluwer Copyright Blog, 9 January 2012) <http://kluwercopyrightblog.com/2012/01/09/a-futile-attempt-spain-implements-web-blocking-regulation/>.

164

Ofcom, ‘“Site Blocking” to Reduce Online Copyright Infringement’ (May 2011) 50.

166

Kohnisoppi, [2], [11]–[13]; see also TorrentFreak, ‘The Pirate Bay to Be Censored in Italy, Again’ (7 February 2010) <http://torrentfreak.com/the-pirate-bay-to-be-censored-in-italy-again-100207/>.

167

See TorrentFreak, ‘Italian Court Orders all ISPs to Block BTjunkie’ (21 April 2011) <http://torrentfreak.com/italian-court-orders-all-isps-to-block-btjunkie-110421/>.

168

See TorrentFreak, ‘Italy Censors Proxy that Bypasses BTjunkie and Pirate Bay Block’ (16 July 2011) <http://torrentfreak.com/italy-censors-proxy-that-bypasses-btjunkie-and-pirate-bay-block-110716/>.

169

AAMS, Elenco di cui al Decreto del Direttore Generale di AAMS relativo alla rimozione di casi di offerta, in assenza di autorizzazione, attraverso rete telematica, di giochi, lotterie, scommesse o concorsi pronostici con vincite in denaro (7 March 2012) <http://aams.it/site.php?id=2484>.

170

AGCOM, Resolution 668/2010.

171

Matthew Pascoletti, ‘Saremo l’Esperimento più Avanzato di Censura del Nuovo Millennio’ (Valigia Blu, 26 June 2011) <http://www.valigiablu.it/doc/414/saremo-lesperimento-pi-avanzato-di-censura-del-nuovo-millennio.htm>.

172

Guido Scorza, ‘L’ammazza-Internet è Ancora un Rischio’ (Punto Informatico, 8 July 2011) <http://punto-informatico.it/3211826/PI/Commenti/ammazza-internet-ancora-un-rischio.aspx>.

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