Blocking user access to copyright-infringing websites – an option?

By Tobias Myrstrand Leander
Vía Flickr

The Court of Justice of the European Union (CJEU) has issued its judgment in Case C-314/12 dealing with a request for a preliminary ruling regarding interpretation of Article 8.3 of Directive 2001/29/EC (on harmonization of copyright in the information society) referred by Austria's Oberster Gerichtshof. The Austrian court asked whether copyright holders could apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright.

The case involved a rightholder who had applied for an injunction to force an Internet access provider to prevent its customers from accessing the website of a third party who was not itself a customer of the said access provider

The issue raised by the matter was whether the third party – who owned an infringing website – could, under Article 8.3 of the Directive, also be deemed to be using the services of providers of access to persons seeking to access the website in question.

The CJEU's decision is incontrovertible in ruling that the infringing third party was indeed using the services of access providers who allowed their customers to access the infringing website irrespective of whether or not there was a contractual link between provider and infringer. This means that an injunction may be ordered against all service providers, not only against the one that provides services to the infringer as its customer.

The judgment further rules that an injunction may be ordered without having to prove that an Internet service provider's customers have actually accessed a website containing unlawful content, because injunctions are aimed not only at bringing infringements of copyright and related rights to an end but also at preventing such infringements.

Nevertheless, the Court goes on to specify that the measures to be adopted by service providers in compliance with injunctions issued under the legislation cited may not unnecessarily deprive users of lawful access to the information while at the same time need to be reasonably effective so that they cannot be readily circumvented by users.

Accordingly, the judgment entitles copyright holders to apply to the courts for injunctive relief against Internet service providers whose services are used by users to access unauthorized material, and relief may comprise blocking access by users to copyright-infringing third-party websites such as websites providing downloads or streaming of films without the rightholder's consent.

Author: Joaquín Rovira 

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