Blocking orders across Europe: personality disorder or are the Swedes right?

How to circumvent a block

Blocking injunctions: are they available as a remedy to ciontrast IP infringements, in particular copyright ones? If so, are they also mandatory for Member States to allow?

A few days ago responses have been provided in Germany and Sweden, respectively.

As Mark reported yesterday, last week the German Federal Court of Justice (Bundesgerichtshof) considered German collecting society GEMA's request for a blocking order against Deutsche Telekom, Germany's largest internet access provider, to prevent access to 3dl.am. The latter is a website that hosts a number of links to files in repositories such as Netload, Uploaded or Rapidshare, that include unlawful copies of works whose relevant rights are administered by GEMA.

The German court recalled that Article 8(3) of the InfoSoc Directive requires Member States to "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."

Does the notion of 'injunction' also encompasses the possibility to seek a blocking order?

Apparently, not necessarily.

Still last week, in fact, the Stockholm District Court refused [decision available here; appeal against the decision already announced here] to issue a blocking order against Swedish internet access provider B2 to prevent access to torrent sites The Pirate Bay and Swefilmer. 

This Kat is not totally fluent in Swedish, but understands that under Swedish copyright law an injunction can be granted against a subject that is not the direct infringer only if this contributes to the infringing acts of a third party. 

According to the Swedish court: (1) this would not be the case of an internet access provider (ISP), and (2) the position under Swedish law is compliant with what is required under Article 8(3) of the InfoSoc Directive.

Yes, blocking orders are
compatible with EU law

While it is a bit challenging to comment on the merits of the German and Swedish decisions due to a slight language barrier, it may be worth making a couple of observations.

Blocking orders are allowed under EU law

The first is that blocking orders are compatible with EU law, as the Court of Justice of the European Union (CJEU) clarified in its 2014 decision in Telekabel [here].

After recalling that Recital 59 in the preamble to the InfoSoc Directive states that intermediaries are, in many cases, best placed to bring infringing activities to an end, and that the objective [to be more precise: one of the objectives] of that directive is to provide rightholders with a high degree of protection, the CJEU held that an ISP that allows its customers to access protected subject-matter made available to the public on the internet by a third party is an intermediary whose services are used to infringe a copyright or related right within the meaning of Article 8(3) of the InfoSoc Directive [on the notion of 'intermediary' see here].

The Court ruled out that blocking injunctions would be per se incompatible with EU law, including the fundamental rights recognised in the Charter of Fundamental Rights of the European Union, notably users' freedom to receive and impart information and ISPs' freedom to conduct a business. In any case, where several fundamental rights are at issue, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with the InfoSoc Directive, but also ensure that they do not rely on an interpretation of it which would be in conflict with those fundamental rights or with the other general principles of EU law, such as the principle of proportionality.

Unlike Advocate General Cruz Villalon in his Opinion (in which he advised that blocking injunctions must be specific), the CJEU ruled that blocking injunctions do not have to be specific, and ISPs are free determine the specific measures to be taken in order to achieve the result sought.

But where do you read that
they are also mandatory?

But it is true that the language of Article 8(3) is ambiguous (and the CJEU has not made it clearer)

Blocking orders appear compatible with EU law. This conclusion does not solely follow from the Telekabel decision (although this was issued with specific regard to Article 8(3) of the InfoSoc Directive), but was already apparent from the 2011 CJEU decision in L'Oréal, in which the CJEU had been called to interpret the third sentence in Article 11 of the Enforcement Directive [twin provision to Article 8(3) of the InfoSoc Directive, although not relating specifically to copyright].

In L'Oréal the Court held in fact that Member States must ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an IP right. This means that national courts must be allowed "to order an online service provider ... to take measures that contribute not only to bringing to an end infringements committed through that marketplace, but also to preventing further infringements." [para 131]

However, the language used in L'Orèal is way stronger than the language used in Telekabel. In the latter case, in fact, the Court refrained from saying explicitly that national courts must be allowed to order ISPs to prevent future infringements [which by the way does not necessarily mean 'blocking orders', but may be other, less intrusive, measures], but merely spoke of blocking orders not being precluded under EU law [para 64].

It would appear from the wording of both Article 8(3) of the InfoSoc Directive and the (soft) language employed by the CJEU in Telekabel that what is required from Member States under EU law is only to ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe copyright or a related right.

The InfoSoc Directive in a nutshell?

As the CJEU itself noted in Telekabel, it follows from Recital 59 in the preamble to the InfoSoc Directive and Article 8(3) thereof that "the rules for the injunctions which the Member States must lay down pursuant to Article 8(3) of the directive, such as those relating to the conditions to be met and the procedure to be followed, are a matter for national law." [para 43]

Blocking orders are cool but are not mandatory

Despite the growing popularity of blocking orders in Europe [see here], and the view that blocking orders are effective - if not currently the most effective - measures to contrast online IP infringements [as Mr Justice Arnold held in his landmark Cartier judgment, noted here], in this Kat's opinion the refusal of the Stockholm District Court to issue a blocking order against B2 is not necessarily symptomatic of the fact that Swedish law is incompatible with EU law. 

This is because EU law does not seem to mandate Member States to allow national courts to issue this specific type of injunctions: nothing in the InfoSoc Directive, nor in the CJEU Telekabel decision, requires the adoption of blocking orders as an enforcement measure under EU law.

All in all, it would appear that it is not Stockholm District Court's fault if the EU has failed to harmonise to a fuller extent the remedies that rightholders can seek before national courts.