BREAKING NEWS: specific blocking injunctions are OK but general filtering is against EU law, says AG Cruz Villalón

Big news for fans of all things EU copyright. Advocate General Cruz Villalón has just issued his much-awaited Opinion [not yet available in English] in Case C-314/12 UPC Telekabel Wien (press release here), a reference for a preliminary ruling from Austria seeking clarification as to the compatibility of blocking injunctions [for a recent application in the UK, see here] and filtering measures with EU law, including the Charter of Fundamental Rights. 

In particular, the reference is all about interpretation of Articles 3(2) [right of making available to the public], 5(1) [transient and incidental reproductions], (2)(b) [exception or limitation for private copying], and 8(3) [injunctions against intermediaries for third parties' infringements] of the InfoSoc Directive. 

As this Kat reported last year, the background dispute concerns unauthorised online availability of protected films. The plaintiff, who holds the rights to various films, successfully applied for an interim injunction aimed at prohibiting defendant UPC (a major Austrian internet access provider) from providing access to a website (kino.to) where such films were made illicitly available for downloading. 

The Oberster Gerichtshof (Supreme Court) decided to stay the proceedings, and refer the following questions to the CJEU:

1.   Is Article 8(3) of the Directive to be interpreted as meaning that a person who makes protected subject matter available on the internet without the right holder's consent is using the services of the access providers of persons seeking access to that protected subject matter?

2.   If the answer to the first question is in the negative, are reproduction for private use and transient and incident reproduction permissible only if the original reproduction was lawfully reproduced, distributed or made available to the public?

3.   If the answer to the first and second question is in the affirmative, and an injunction is therefore to be issued against the user's access provider in accordance with Article 8(3) of the Directive, is this compatible with Union law, in particular with the necessary balance between the parties' fundamental rights? 

4.   If the answer to the third question is in the negative, is it compatible with Union law to require an access provider to take specific measures to make it more difficult for its customers to access a website containing material made available unlawfully if those measures require not considerable costs and can easily be circumvented without any special technical knowledge?

Specific blocking may be OK ... 

When the Austrian court decided to refer the case, this Kat thought that it would be a very interesting (and possibly controversial) one for the CJEU, especially with regard to the last question. This is because recent rulings in Cases C-70/10 Scarlet and C-360/10 Netlog did not really clarify whether and to what extent the installation of filtering systems would be contrary to EU law tout court: the answers given by the Court in both cases were heavily fact-specific and drafted as if the various conditions listed therein were cumulative - rather than alternative - ones.  

The AG Opinion

According to AG Cruz Villalón an ISP can be required to block access by its customers to a website which infringes copyright. Such a court injunction must refer to specific blocking measures [aimed at bringing infringements already committed  to an end, but also at preventing news ones, pursuant to the seminal CJEU decision in Case C-324/09 L'Oréal, on which see here] and achieve an appropriate balance between the opposing interests which are protected by fundamental rights. 

UPC has no legal relationship with the operators of the illegal website and made neither internet access nor storage space available to them. However, individual UPC customers availed themselves of the kino.to offer. 

... But general filtering is against EU law

According to the press release, AG Cruz Villalón "takes the view that the internet provider of the user of a website which infringes copyright is also to be regarded as an intermediary whose services are used by a third party – that is the operator of the website - to infringe copyright and therefore also as a person against whom an injunction can be granted."

This said,

"it is incompatible with the weighing of the fundamental rights of the parties to prohibit an internet service provider generally and without ordering specific measures from allowing its customers to access a particular website that infringes copyright. That also applies where the provider can avoid incurring a penalty for breach of that prohibition by showing that it has taken all reasonable steps to comply with the prohibition. Advocate General Cruz Villalón underlines in that connection that the provider of the user has no connection with the operators of the website that infringes copyright and has not itself infringed the copyright. 

However, a specific blocking measure imposed on a provider relating to a specific website is not, in principle, disproportionate only because it entails not inconsiderable costs but can easily be circumvented without any special technical knowledge. [It is up to national judges to weigh and balance the fundamental rights of the parties involved]"

This Kat is now going to read the Italian version of the Opinion and provide a more detailed analysis as soon as possible. So: stay tuned!