Belgian blocker shocker: where civil and criminal law meet?

It's not often that the IPKat gets an email from an entire Law Department, but he received one this weekend from the IP Law Department of the University of Liège, Belgium, concerning a recent decision of the Belgian Supreme Court (Cour de cassation/Hof van cassatie) that is of sufficient interest to share with a wider readership.  The story goes as follows:

"This judgment (Case P.13.0550.N of 22 October 2013) was delivered in the context of criminal proceedings triggered by a complaint filed with an Investigating Judge ("juge d’instruction" or "onderzoeksrechter", depending on your linguistic preference) by collecting societies representing copyright owners whose works were made available through the all-too-well-known Pirate Bay website.

"FCCS ... FCCT ... FCCU ..."

The Investigating Judge, invoking his powers under the Code of Criminal Proceedings, asked ALL Belgian operators and internet service providers (ISPs) -- without there being any previous trial proceedings  -- to block access to content hosted by the server linked to the root domain name thepiratebay.org by using ALL possible technical means including, at the very least, the blocking of all domain names that redirected internet users to this server. The Investigating Judge added that the list of domain names to block had to be determined by the regional police and the Belgian Federal Computer Crime Unit (the 'FCCU') [Merpel keeps thinking that 'FCCU' must be rude, but can't quite work out why ...] following the "reverse IP domain check" technique or any other "material technical observation" of redirection.

Three ISPs disputed the Investigating Judge's order on different grounds. However, both the Appellate Chamber and the Supreme Court confirmed it.

Before the Supreme Court, the ISPs argued first that the provisions of the Code of Criminal proceedings concerning the seizure of property did not authorize the Investigating Judge to take such measures in order to prevent the proliferation of a crime; "seizure" is meant only to safeguard pieces of evidence (ie a fact-finding function) or to guarantee that it would be possible to confiscate the subject-matter of a crime, or the material means for committing it, at the time of trial.

On the basis of a specific provision introduced into the Code of Criminal Proceedings by the Act on Computer Crimes adopted in 2000, the Supreme Court answered that an Investigating Judge may also order coercive measures, in relation to computer data, with the view to stopping acts which prima facie amount to a criminal offence, or to limiting the harm to the interests of the plaintiffs ("parties civiles" -- the injured parties), and that such order may be imposed upon ISPs if that is the only way to achieve this result.

Never mind saisie, a bit of
Arret is good for blocking ...

The second ground invoked by the ISPs was that the order in question, which did not exhaustively state the means of fulfilling the blocking order or exhaustively list the domain names to be blocked, was contrary to the Belgian Act transposing Article 15(1) of the E-Commerce Directive (2000/31) which, as is well known, prevents Member States from imposing (i) a general obligation on providers to monitor the information which they transmit or store or (ii) a general obligation actively to seek facts or circumstances indicating illegal activity. Said the Supreme Court:

"the order given to an ISP to block access to the content hosted by a server linked to a root domain name by all possible technical means, including at least by blocking all the domain names which redirect to [this] server and which also specifies which technical process must be used to this end, does not entail a monitoring obligation as meant in Article 15(1) of the E-Commerce Directive .... The ISPs are indeed not asked to control the information that they transmit or store, or to to actively seek facts or circumstances indicating illegal activity" (at para. 24 - rough translation).

Accordingly, the Court rejected this plea and decided not to refer preliminary questions to the Court of Justice of the European Union (CJEU), as the ISPs had proposed.

Although the Belgian Supreme Court’s views appear slightly different to those expressed about a month later by the CJEU's Advocate General Pedro Cruz Villalón in Case C 314/12, UPC Telekabel Wien (noted here by the IPKat), it must be emphasised that the police are, according to the order in question, meant actively to provide the ISPs with a regularly updated list of domain names referring to the website at the heart of this litigation (and to check the accurate implementation of the order by the ISPs). One of the many questions remaining is how the addition of names by the police can be challenged".

For the benefit of Dutch speakers the judgment, in their native tongue, can be accessed here.