Swedish ISP Telenor will voluntary block The Pirate Bay

The Pirate Bay
Following a landmark ruling of the Swedish Patent and Market Court of Appeal in 2017, Swedish internet service provider (ISP) – Bredbandsbolaget (B2) – was ordered to block access to The Pirate Bay and Swefilmer [read the earlier post on this decision here]

Now, a year later, Telenor – an ISP which has long fought against site-blocking in Sweden – will voluntarily begin blocking The Pirate Bay.

According to a report by TorrentFreak, Telenor’s Head of Communication has stated that Telenor has already blocked The Pirate Bay but the blocking would focus on a subset of its customers. “Telenor has been encompassed by the blocking of TPB since the court ruling in 2017. This has primarily applied to mobile broadbands prior to the consolidation,” he said.

The 2017 appeal judgment

In the B2 2017 judgment it was established that it is indeed possible for rights holders to obtain an injunction (in compliance with Article 8(3) of the InfoSocDirective) against an intermediary whose services are used to commit a copyright infringement, even if the ISP only provides its customers with internet access. The Patent and Market Court of Appeal noted that this means that there is neither a need for a contractual requirement nor other relationship between the intermediary and the third-party infringer.

In relation to Article 53b of the Swedish CopyrightAct (SCA), which is the provision that enables rights holders to seek injunctions, the Court reiterated that this should be interpreted in light of EU law. The result was that an intermediary, that supplies access to copyright content unlawfully provided by third parties, should be regarded as “participating” in the infringing activity. It followed that it should be possible to issue an injunction against such an intermediary. 

"...watch out for the floodgates"
In addition, in order to determine whether it is proportionate to issue an injunction there is a need to strike an appropriate balance between the fundamental rights to: (i) copyright protection; (i) receive/impart information; and (ii) to conduct one’s own business. Because, in the present case, the services of the intermediary were used to make works available without the rights holders’ consent it was considered to be proportionate to issue an injunction.

Following this judgment, B2 stated that it would block The Pirate Bay but that it would not give up the fight.

… So, what about the current blocking?

Regarding this latest development it all dates back to 2005, when Telenor acquired B2. 

Until last week, the two companies operated under separate entities but they are now merging into one. 

According to TorrentFreak, up until this final merger, 600,000 B2 customers were denied access to The Pirate Bay. It appears that now Telenor’s 700,000 customers will be also affected. The new single-brand company has stated that it has decided to block The Pirate Bay across its entire network.

Whether this move is merely due to the merger of the two companies or not, one thing is clear and that’s that further steps are taken to realize blockings without necessarily the interference of a court order. 

Can this be a step further towards effective online enforcement? As one might recall, ISPs undertake blocking in several countries without necessarily the need of a court order. This trend may be due to continue.            
Swedish ISP Telenor will voluntary block The Pirate Bay Swedish ISP Telenor will voluntary block The Pirate Bay Reviewed by Nedim Malovic on Thursday, May 24, 2018 Rating: 5

1 comment:

  1. Article 3(3) of 2015/2120 provides that:

    "Providers of internet access services shall treat all traffic equally, when providing internet access services, without discrimination, restriction or interference, and irrespective of the sender and receiver, the content accessed or distributed, the applications or services used or provided, or the terminal equipment used."

    Where a provider is compelled by law to put in place measures which interfere with this, there is no breach provided that the measures are only those which are necessary, and which are in place only as long as necessary.

    However, in the case of voluntary blocking, it is entirely possible that the provider breaches the Article 3(3) prohibition.

    If the blocking mechanism is just the provider subverting its own DNS resolver, so that wrong or no IP address information is provided, there's an argument that the measures are not being imposed "when providing internet access services", on the basis that DNS is not internet access, but it might be a stretch...


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