Injunction function: internet service providers and fair balance in web-blocking

On 27 March 2014, the European Court of Justice (ECJ) clarified that an internet service provider (ISP) is an intermediary against which copyright rights-holders can obtain an injunction, as provided by Art 8(3) of the Information Society Directive (2001/29/EC). The case, UPC Telekabel v Constantin Film & Wega (C-314/12), referred by the Supreme Court of Austria, has allowed the Austrian Supreme Court to uphold a web-blocking order issued to an internet service provider, despite its claim that it had no ‘contractual link’ with the infringing content-aggregation site, kino.to. To decide otherwise, said the ECJ, would substantially diminish the high level of protection that the Directive aimed to guarantee.

Further, the ECJ specified that there was no need for users to have accessed the copyrighted material online, just that the ISP made it available to the public. This reflects both the fact that injunctions are as much about preventing future infringement, as stopping existing infringement, and also that the restricted act was the ‘making available to the public’.

While the conditions applicable to such injunctions are a matter for national law, the ECJ provided some guidance, in particular in relation to the need for member states to strike a ‘fair balance’ with fundamental rights and EU principles, in this case the balance between intellectual property, the freedom to conduct business and the freedom of information of internet users (under Art 17(2), 16 and 11 of the Charter of Fundamental Rights of the EU). In particular, the ECJ clarified that a ‘fair balance’ could be struck even where the measures implemented by the ISP would not lead to a complete cessation of the infringing activity. The crucial issue is that the measures, on the one hand, did not unnecessarily deprive internet users of the possibility of lawful access and, on the other, prevented unauthorised access or at least made it difficult to achieve and seriously discouraged internet users from obtaining unauthorised access.

Injunctive relief against ISPs is just one of the means by which rights-holders have sought to protect copyright online. Rights-holders are faced with myriad challenges when seeking to prevent online infringement, whether through uploading, downloading, and streaming online, with enforcement complicated by jurisdictional issues and the sheer volume and ease of infringement in the digital world. Content aggregation websites that allegedly facilitate infringement, such as kino.to in the immediate case, which provide multiple links to copyrighted material online are the newest target in efforts to prevent copyright infringement, and ISPs like UPC Telekabel, that host content aggregation sites are being drawn into the takedown battle through court injunctions requiring web blocking. In view of this, the guidance provided by the ECJ is welcomed to assist national courts navigating this complex area.