Apr 14

The European Court of Justice in UPC Telekabel: Internet users must have their say on blocking-orders as well?

The spring has started (at least in the Northern Hemisphere), and decisions on the enforcement of copyrights on the internet flourish. A couple weeks ago, the European Court of Justice (CJEU) delivered its decision in the Svensson-case, which some greeted as a liberation of the hyperlink from copyright law’s claws. After carefully reading the decision, we have to conclude that there may still be cases in which linking to copyright-protected content amounts to copyright infringement. Just as in Svensson, the CJEU in its latest decision of UPC Telekabel v. Constantin Film Verleih produced a nuanced ruling of which the implications are not yet clear right away.

I think there are at least four interesting points in the decision that deserve to be highlighted. Firstly, the CJEU provides some insight into the scope of Article 8(3) of the Infosoc Directive and which intermediaries may be subject to injunctions based on that article.

Secondly, the CJEU makes it clear that general injunctions prohibiting internet access providers to provide access to certain websites are compatible with EU law. In essence, the Court has no problem with burdening internet access providers with the search for a solution to prevent access to copyright infringing websites. There should, however, be an escape route for internet access providers when they cannot reasonably comply with the injunction. Furthermore, national courts play an important role in testing whether such solutions strike the right balance between the fundamental rights of all parties affected by measures taken by internet access providers.

Thirdly, and maybe most importantly, the CJEU provides national courts and Member States with instructions on how to deal with injunctions prohibiting the provision of access to certain websites. The CJEU comes up with procedural safeguards to protect the right of freedom of information of internet users.

Fourthly, the CJEU seems to set a standard on how effective an injunction must be for it to be compatible with rules of EU copyright law and the copyright owner’s fundamental right to protection of his intellectual property.

Facts of the case and preliminary questions

The question that is central to UPC Telekabel is whether an internet access provider can be subject to an injunction prohibiting the provision of access to a copyright infringing website. The website in question offered thousands of films for streaming or downloading. Among those films made available were films by the plaintiffs in this case, Constantin Film Verleih and Wega Filmproduktionsgesellschaft. The plaintiffs applied for an injunction prohibiting Austrian internet access provider UPC Telekabel from providing its customers with access to the website. The Commercial Court of Vienna had granted the injunction and ruled that the internet access provider had to stop providing access to the website by means of DNS blocking of the domain name, and blocking of the current and future IP addresses at which the website could be reached.

On appeal, the Higher Regional Court of Vienna reformulated the injunction into an injunction that prohibited the provision of access to the website, but that did not specify the means to prevent access to the website. UPC Telekabel appealed against the decision of the Higher Regional Court with the Austrian Supreme Court, which in turn asked the European Court of Justice preliminary questions on the scope of Article 8(3) of the  Infosoc Directive and the the compatibility of the issued injunction with EU law.

Scope of Article 8(3) of the Infosoc Directive: All internet access providers can be subject to injunctions regardless of relationship or involvement

In essence, the first question to the CJEU is whether an internet access provider is an “intermediary” in the sense of Article 8(3) of the Infosoc Directive. This Article provides that “[m]ember States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.” The Article calls on EU Member States to provide copyright owners with a possibility to apply for a potentially very powerful injunction against intermediaries that disregards questions of knowledge, involvement or other elements that would normally come into play when dealing with liability for fault or negligence.

The first question thus is a question on the scope of Article 8(3) of the Infosoc Directive: against which intermediaries may a copyright owner apply for an injunction such as a blocking-order? Framing the question as asking whether Article 8(3) or other rules of EU law require an internet access provider to block a particular website, and taking the Court’s positive answer as a ‘yes’ to that question, is based on a misreading of Article 8(3) and the Court’s decision in this case.

Already in 2009, the CJEU in LSG v. Tele2 had held that internet access providers are “intermediaries” in the sense of Article 8(3) of the Infosoc Directive. This case, however, dealt with the possibility of an injunction against an internet access provider to release personal data of its subscribers in order to bring civil proceedings for copyright infringements against these subscribers. In this case there thus was a less vague link between the internet access provider and the infringers than in the Telekabel-case in which there was no such link at all.

In UPC Telekabel the Court to a great extent draws from its earlier conclusions in LSG v. Tele2 in which the Court explained that the mere provision of internet access should be seen as the provision of a service used to infringe copyrights:

“Access providers who merely enable clients to access the Internet, even without offering other services or exercising any control, whether de iure or de facto, over the services which users make use of, provide a service capable of being used by a third party to infringe a copyright or related right, inasmuch as those access providers supply the user with the connection enabling him to infringe such rights.”

In explaining its argument, the CJEU referred to the aim of the Infosoc Directive, which is to ensure legal protection of copyrights. According to the CJEU, copyright protection “would be substantially diminished if ‘intermediaries’, within the meaning of Article 8(3) of that directive, were to be construed as not covering access providers, which alone are in possession of the data making it possible to identify the users who have infringed those rights.”

The argument that copyright protection would be ineffective if internet access providers cannot be subject to Article 8(3) injunctions is repeated by the CJEU in UPC Telekabel. However, what UPC Telekabel adds is that for Article 8(3) to apply it makes no difference whether there is a contractual link or specific relation between the internet access provider and the copyright infringer. It does not matter whether an infringer is a customer of the internet access provider, or whether the internet access provider is involved somewhere in the up- or downstream of transmitting copyright-protected content:

Neither the wording of Article 8(3) nor any other provision of Directive 2001/29 indicates that a specific relationship between the person infringing copyright or a related right and the intermediary is required. Furthermore, that requirement cannot be inferred from the objectives pursued by that directive, given that to admit such a requirement would reduce the legal protection afforded to the rightholders at issue, whereas the objective of that directive, as is apparent inter alia from Recital 9 in its preamble, is precisely to guarantee them a high level of protection.

Nor is the conclusion reached by the Court in paragraph 30 of this judgment invalidated by the assertion that, in order to obtain the issue of an injunction against an internet service provider, the holders of a copyright or of a related right must show that some of the customers of that provider actually access, on the website at issue, the protected subject-matter made available to the public without the agreement of the rightholders.”

In this context it may not come as a surprise that the CJEU also argues that no proof of actual infringement through use of the internet access provider’s service is needed for an injunction:

“[The Infosoc Directive] requires that the measures which the Member States must take in order to conform to that directive are aimed not only at bringing to an end infringements of copyright and of related rights, but also at preventing them […]

Such a preventive effect presupposes that the holders of a copyright or of a related right may act without having to prove that the customers of an internet service provider actually access the protected subject-matter made available to the public without their agreement.

That is all the more so since the existence of an act of making a work available to the public presupposes only that the work was made available to the public; it is not decisive that persons who make up that public have actually had access to that work or not […].”

Fundamental rights and general principles of EU law

The CJEU was also asked to answer the question whether the fundamental rights recognized by EU law preclude an injunction prohibiting an internet access provider to provide access to an infringing website without specifying any measures, and when that provider can avoid incurring coercive penalties for breach of that injunction by showing that it has taken all reasonable measures. This question not just asks about the compatibility of a general injunction with fundamental rights, it also asks about the compatibility of such an injunction in combination with a possibility of escaping the payment of penalties when the internet access provider is able to show that it has taken reasonable steps to comply with the injunction’s prohibition.

After noting that the conditions to be met and the procedure to be followed when issuing injunctions are a matter for national law, the CJEU dug up its “fair balance between fundamental rights, and general principles of EU”-test that we know from earlier decisions such as Promusicae v. Telefónica and Scarlet v. Sabam (see my blogpost on that case)The conflicting rights in the UPC Telekabel-case are of course the filmmakers’ right to intellectual property, the internet access provider’s freedom to conduct a business, and internet users’ freedom of information. In short, the CJEU holds that the injunction  balances these conflicting fundamental rights well, but the Court also introduces two  procedural points that national courts and Member States need to take into account when dealing with general injunctions prohibiting the provision of access to specified websites. I think that especially these procedural points have been given too little attention in most reports on the UPC Telekabel-decision.

Procedural safeguards to protect the rights of internet access providers AND internet users

Although the CJEU perceives the injunction in question as a restraint on the internet access provider’s freedom to conduct a business, the Court for two reasons argues that the injunction does not infringe “the very substance” of this fundamental right. Firstly, the injunction leaves it up to the internet access provider to determine what measures to take in order to prevent access to the infringing website. Although the internet access provider is prohibited from providing  access to the infringing website, the provider still has a choice in how to comply with that prohibition. Secondly, the injunction requires the internet access to do only what can be reasonably asked from him. According to the Court, the “possibility of exoneration clearly has the effect that the addressee of the injunction will not be required to make unbearable sacrifices, which seems justified in particular in the light of the fact that he is not the author of the infringement of the fundamental right of intellectual property which has led to the adoption of the injunction.”

The Court here clearly diverts from the opinion of Advocate General Cruz Villalón who argued that if, even after the injunction has been issued, the internet access provider has the opportunity to argue that the injunction is unreasonable, the injunction would still not strike the necessary balance between the conflicting fundamental rights. The Advocate General pointed out that even with such an opportunity, internet access providers would run the risk of being caught in a crossfire between copyright owners and internet subscribers:

As I have already mentioned at the beginning, there are a number of measures which can be considered for the purpose of blocking a website, that is to say, for possible compliance with the outcome prohibition. They include highly complex methods, such as diverting Internet traffic through a proxy server, but also measures which are less difficult to implement. The measures thus differ significantly as regards the degree to which they interfere with the fundamental rights of the ISP. Moreover, it is not inconceivable that full compliance with the outcome prohibition is impossible from a purely practical point of view.


An examination of the ISP’s situation also shows that no balance between the fundamental rights is struck by that procedural opportunity. The ISP must suffer the issuing of an injunction against it, from which it is not apparent what measures it is required to take. If, in the interest of its customers’ freedom of information, it decides on a mild blocking measure, it must fear a coercive penalty in the enforcement process. If it decides on a more severe blocking measure, it must fear a dispute with its customers. The reference to a possible opportunity to defend itself in the enforcement process does not in any way alter the ISP’s dilemma. It is true that the originator can rightly refer to the danger of massive infringement of its rights by the website. However, in cases like the present, the ISP has no connection with the operators of the copyright‑infringing website and has itself not infringed the copyright. To that extent, the measure to be examined cannot be said to strike a fair balance between the rights of the parties.”

The CJEU partly deals with this “crossfire-problem” by introducing a procedural requirement that gives internet access providers the opportunity to test the reasonableness of the injunction, before the provider is ordered to pay penalties for not complying with the court order:

“In that regard, in accordance with the principle of legal certainty, it must be possible for the addressee of an injunction such as that at issue in the main proceedings to maintain before the court, once the implementing measures which he has taken are known and before any decision imposing a penalty on him is adopted, that the measures taken were indeed those which could be expected of him in order to prevent the proscribed result.”

The CJEU also tries to deal with the problem of over-inclusive blocking by requiring that the internet access provider’s measures to prevent access to an infringing website are “strictly targeted” to the infringements, and that they may not interfere with lawful access to information by internet users. The Court here explicitly refers to the freedom of information of internet users that are of course also affected by the blocking of certain websites:

“In this respect, the measures adopted by the internet service provider must be strictly targeted, in the sense that they must serve to bring an end to a third party’s infringement of copyright or of a related right but without thereby affecting internet users who are using the provider’s services in order to lawfully access information. Failing that, the provider’s interference in the freedom of information of those users would be unjustified in the light of the objective pursued.

But the CJEU does not just say that the freedom of information of internet users is important, the Court also instructs national courts to take into account the negative effects on the internet users’ access to information. And even more importantly, the Court seems to argue that internet users should have a possibility to have their say as well. In order to make that point, the Court first notes that in order for national courts to test whether the injunction is compatible with the internet users’ right to freedom of information, that issue needs to be challenged before the national court. For instance, Dutch civil courts usually only take into account arguments that are presented to them by the parties. In a case of general injunctions prohibiting the access to a website, those parties are a copyright owner who applies for an injunction and an internet access provider that would be the subject to that injunction. The CJEU therefore seems to argue that internet users, who are usually not represented in procedures on such injunctions, should have a possibility to assert their rights once the internet access provider’s blocking mechanisms are known:

“It must be possible for national courts to check that that is the case. In the case of an injunction such as that at issue in the main proceedings, the Court notes that, if the internet service provider adopts measures which enable it to achieve the required prohibition, the national courts will not be able to carry out such a review at the stage of the enforcement proceedings if there is no challenge in that regard. Accordingly, in order to prevent the fundamental rights recognised by EU law from precluding the adoption of an injunction such as that at issue in the main proceedings, the national procedural rules must provide a possibility for internet users to assert their rights before the court once the implementing measures taken by the internet service provider are known.”

After the CJEU’s decision in Scarlet v. Sabam, I was a little disappointed with the Court’s assessment of the implications of an internet filter on the right to freedom of information of internet users, the Court in UPC Telekabel does seem to fully take into account that freedom. This difference in appreciation can of course be explained be the outcomes in those cases. In Scarlet, the CJEU argued that an internetfilter to filter out copyrighted music did not comply with EU law, in particular with Article 15 of the E-Commerce Directive, and the Court therefore did not need to be too strict regarding the right to freedom of information of internet users. However, in UPC Telekabel, the Court finds a general prohibition to provide access to a particular website to be consistent with EU law, and the Court uses the internet user’s right to freedom of information as a counterbalance that prohibition. 

The effects of the injunction: keeping it real(istic)!

Regarding the effects that the injunction must have, the CJEU makes clear that measures taken by internet access providers do not need to have the effect of preventing all unauthorised access to the copyrighted content. “Sufficiently effective” is the key:

“None the less, the measures which are taken by the addressee of an injunction, such as that at issue in the main proceedings, when implementing that injunction must be sufficiently effective to ensure genuine protection of the fundamental right at issue, that is to say that they must have the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging internet users who are using the services of the addressee of that injunction from accessing the subject-matter made available to them in breach of that fundamental right.”

The Court here seems to set a standard that can also be used to assess the effectiveness of other blocking-orders. This standard could for instance be applied in the Dutch case of Brein v. XS4ALL and Ziggo, in which the Court of Appeals of The Hague recently held that the blocking of the Pirate Bay was not sufficiently effective. Brein appealed against the decision with the Dutch Supreme Court and I am sure that CJEU’s decision in UPC Telekabel will have have much influence on the Dutch Supreme Court’s decision.

Alright, that’s it for now on the UPC Telekabel-case!

Mar 13

European Court of Human Rights: The Pirate Bay co-founders’ complaint “manifestly ill-founded”

The European Court of Human Rights (ECtHR) recently gave a decision in the case of Neij and Sunde Kolmisoppi v. Sweden. This is the second case in a short time that deals with copyright and freedom of expression. Whereas the case of Ashby Donald and others v. France was decided on the merits, this case was considered inadmissible and thrown out by the ECtHR. Nonetheless, the Court’s decision did provide an interesting read.

First, the facts of the case. Fredrik Neij and Peter Sunde Kolmisoppi are the co-founders of the famous torrent-platform that is The Pirate Bay (for a recent documentary about all the founders of The Pirate Bay, see this YouTube-video). In Sweden, they were convicted for furthering copyright infringement. They filed a complaint to the ECtHR and argued that their right to freedom of expression was breached. The Svea Court of Appeal had confirmed the District Court’s decision that “by making available its website with well-developed search functions, simple uploading and storing possibilities and through its tracker system, TPB [The Pirate Bay] had facilitated and furthered the crimes in violation of the Copyright Act and thereby, objectively been guilty of complicity to commit crimes in violation of the Act.” However, whereas the District Court had held that they should be held collectively responsible for these crimes, the Court of Appeals held that Neij and Sunde Kolmisoppi’s criminal liablity should be assessed indivually.

Neij was held responsible for “the programming, systematisation and daily operations of TPB.” Sunde Kolmisoppi “contributed to the financing of TPB by collecting debts from two advertisers and, moreover, to have contributed in closing an advertising agreement. He had further contributed to the development of TPB’s systematic tracker function and database. Lastly, he had configured a load balancing service for TPB.” The Court of Appeals held that they were not shielded from criminal liability on the basis of the ‘Electronic Commerce Act’, in which the liability exemptions of the European E-Commerce Directive are implemented. They had committed the offences intentionally and the exemptions from criminal liability could not apply under such circumstances.

Regarding the plaintiff’s claim for damages, the Court of Appeals noted the following:

“[…] TPB had created the possibility to upload and store torrent files, a database and a tracker-function. Thus, it had not merely offered transfer of data or caching, which was a precondition for freedom from indemnity liability under the Act. The Court of Appeal noted that the applicants had not taken any precautionary measures, and torrent files which referred to copyright-protected material had not been removed despite warnings and requests that they do so.”

When the Swedish Supreme Court refused leave to appeal, the Pirate Bay co-founders complained to the European Court of Human Rights. They argued that that their right to receive and impart information (Article 10 of the Convention) had been violated by the conviction.

The complaint

Neij and Sunde Kolmisoppi:

“Article 10 of the Convention enshrines the right to offer an automatic service of transferring unprotected material between users, according to basic principles of communication on Internet, and within the information society. In their view, Article 10 of the Convention protects the right to arrange a service on the Internet which can be used for both legal and illegal purposes, without the persons responsible for the service being convicted for acts committed by the people using the service. In this connection, they referred to international frameworks, expressing a far-reaching right to receive and provide information between Internet users.”

The ECtHR’s decision

When outlining the circumstances of the case, the ECtHR notes that “the service used the so-called BitTorrent protocol. TPB made it possible for users to come into contact with each other through torrent files (which in practice function as Internet links). The users could then, outside TPB’s computers, exchange digital material through file- sharing.” Technically speaking, the claim that torrent-files function as internet links is hard to maintain. Torrent-files only contain meta-data about downloadable files. They point to a ‘tracker’ that keeps a global registry of all the downloaders. When a user queries the tracker, it responds by providing a list of peers, with whom the user can establish a direct connection to download the files. The Pirate Bay allows users to upload torrent-files and operates a tracker so they are involved in a large part of the process, from finding a torrent-file to providing a list of peers from which parts of files can be downloaded. This of course does not support the statement that torrent-files function as links. They are, at the most, indirect links.

The ECtHR holds that The Pirate Bay co-founders’ conduct falls under Article 10(1) of the Convention, and that Sweden, by convicting them, had interfered with their right to freedom of expression. The Court reiterates its decisions in the Times Newspaper-cases and the recent Ashy Donald-case, and underlined that the Internet, “in the light of its accessibility and its capacity to store and communicate vast amounts of information, […] plays an important role in enhancing the public’s access to news and facilitating the sharing and dissemination of information generally”.

On the basis of Article 10(2) of the Convention, the exercise of the freedom of expression may be subject to formalities, conditions, restrictions or penalties, only if they are ‘prescribed by law’, pursue one or more of the legitimate aims referred to in Article 10(2) of the Convention and are ‘necessary in a democratic society’. The ECtHR is brief but clear in its reasoning that the interference was prescribed by law as the convictions were based on the Copyright Act and the Penal Code. The Court is equally brief in explaining that there was a legitimate aim. It held that the conviction pursued the legitimate aim of ‘protection of the rights of others’ and ‘prevention of crime’.

On whether the interference was necessary in a democratic society, the ECtHR’s assessment boiles down to a balance of two competing rights enshrined in the Convention and its Protocols: the right to freedom of expression (Article 10 of the Convention), including the right to receive and impart information, versus the right to protection of property (Article 1 First Protocol). It underlines that when two competing interests that are both protected by the Convention, Sweden has a wide margin of appreciation. This means that Sweden itself is given leeway in balancing the two competing interests. Furthermore, because the materials that are shared on The Pirate Bay are not given the same amount of protection that is granted to political expression and debate, the margin of appreciation is even wider. The ECtHR points out that the Swedish authorities were obligated to protect copyrights in accordance with the Swedish Copyright Act and the Convention, and that the courts advanced relevant and sufficient reasons for the conviction.

“In conclusion, having regard to all the circumstances of the present case, in particular the nature of the information contained in the shared material and the weighty reasons for the interference with the applicants’ freedom of expression, the Court finds that the interference was “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention.”

Although the Court is extensive in laying down the facts and its reasoning, it nevertheless comes to the conclusion that the application of The Pirate Bay co-founders is ‘manifestly ill-founded‘. This means that their application is declared inadmissible. Neij and Sunde Kolmisoppi have not yet lost all hope. They told TorrentFreak that “not all doors are closed yet”. I wonder what doors I am missing here.

Mar 12

Annotation to Scarlet/SABAM case

Together with Frederik Zuiderveen Borgesius, I wrote an annotation to the ECJ’s decision in the Scarlet/SABAM case. Unfortunately (or fortunately), it is in Dutch.

You can download the annotation here.