In this article we examine the legal framework of the European Union for injunctions against intermediaries whose services are used by a third party to infringe an intellectual property right, as set forth in the InfoSoc Directive and the Enforcement Directive. In particular, we consider the conditions to apply for the injunctions, taking into account how those conditions have been construed by the CJEU. We explore which is the minimum floor of injunctive relief Member States are obliged to provide under the Directives, as well as the maximum ceiling allowed, beyond which the protection granted would infringe upon the limits imposed by EU law. Next, we move on to consider particular types of injunctions that right holders may apply for against intermediaries on the basis of Art. 8(3) of the InfoSoc Directive, namely those that would consist of enjoining an ISP from providing Internet access to one of its users allegedly engaging in copyright infringement. A case already decided in Spain, Promusicae et al. v. R Cable y Telecomunicaciones Galicia, granting such an injunction serves us as a study case to assess the problems these remedies face. On the one hand, these privately litigated Internet disconnection injunctions may be seen by right holders as a promising tool to fight online copyright infringement – perhaps an alternative to unsuccessful graduate response schemes. However, as we show in this article, these injunctions raise serious issues regarding their compatibility with the EU Charter of Fundamental Rights. Indeed, the possibility of effective injunctions of this kind which conform with human rights turns out to be very narrow. In other words, the Directive’s provisions promise much, but if applied correctly, they deliver little.
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Legislation implementing graduated response schemes has been adopted in France, the UK, New Zealand, Taiwan and South Korea. In addition, private agreements between right holders and ISPs have been reached in a number of countries, including Ireland and the US. See Giblin (2014), Bridy (2012), Yu (2010).
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (hereinafter “InfoSoc Directive”).
See, e.g. UPC Telekabel Wien C-314/12.
See Leistner (2014), p. 75.
Article 26 AUPC provides: “(1) A patent shall confer on its proprietor the right to prevent any third party not having the proprietor’s consent from supplying or offering to supply, within the territory of the Contracting Member States in which that patent has effect, any person other than a party entitled to exploit the patented invention, with means, relating to an essential element of that invention, for putting it into effect therein, when the third party knows, or should have known, that those means are suitable and intended for putting that invention into effect”.
See Husovec (2013), p. 117.
See Husovec (2013), footnote 5, reporting about the Donner case, C-5/11, where the CJEU read into the autonomous notion of the “distribution right” arguably also the test for secondary infringements in para. 27 of the decision, and L’Oreal SA & Ors v. eBay International AG & Ors  EWHC 1094 (Ch), where Justice Arnold considers the possibility of Union secondary liability.
Articles 12–15 of the Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (hereinafter “E-Commerce Directive”).
The recent case of UPC Telekabel Wien C-314/12 refers to an Internet access provider as someone who “is not the author of the infringement of the fundamental right of intellectual property which has led to the adoption of the injunction” (UPC Telekabel Wien, para. 53). See more discussion in Husovec (2014).
Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (hereinafter “Enforcement Directive”).
See Recital 23 of the InfoSoc Directive; Recital 59 of the Enforcement Directive. See also Scarlet Extended C-70/10, para. 32 and Netlog C-360/10, para. 30.
Article 63(1) AUPC appears to be an autonomous rule with its own preconditions.
See CJEU, Tele 2, C-557/07 (emphasis added).
However unlikely, an electricity provider, for instance, could be theoretically sued as an off-line intermediary to cut off the access to electricity to an infringing factory. Application of these injunctions to off-line intermediaries have arrived before the CJEU so far only once in Frisdranken, C-119/10 in the context of the Advocate General’s opinion.
See UPC Telekabel Wien, C-314/12, para. 34.
Angelopolous (2009) CJEU in UPC Telekabel Wien: A totally legal court order … to do the impossible. Kluwer Copyright Blog. Available at http://kluwercopyrightblog.com/2014/04/03/upc-telekabel-wien/.
Compare this rationale with “in rem injunctions” in the civil law countries – see Husovec (2013).
If the person who uses the services of an Internet access provider is not a user, but a targeted website in the website blocking cases, the infringing acts often rely on the secondary liability of those websites. This is most likely the case even in the situation that gave rise to the UPC Telekabel Wien reference, but also in other national cases in the UK, such as Newbiz II  EWHC 1981 (Ch) (the website operator is secondary liable for joint tortfeasorship and authorization of an infringement); Newbiz II  EWHC 2714 (Ch); Dramatico  EWHC 268 (Ch) (paras. 81, 83 – the website operator is secondary liable for joint tortfeasorship and authorization of an infringement); Dramatico  EWHC 1152; EMI Records  EWHC 379 (Ch) (paras. 70, 74 – the website operator is secondary liable for joint tortfeasorship and authorization of an infringement); FAPL v. Sky  EWHC 2058 (Ch) (para. 43 – alternatively is the website operator also secondary liable for joint tortfeasorship); Paramount v. Sky  EWHC 3479 (Ch) (para. 35 – alternatively is the website operator also secondary liable for joint tortfeasorship).
In common law also called quia timet injunctions.
Both the InfoSoc and Enforcement Directives require that the measures which the Member States must take in order to conform to those directives are aimed not only at bringing to an end infringements of copyright and related rights, but also at preventing them (see to that effect for the InfoSoc Directive: Scarlet Extended, C-70/10, para. 31; Netlog, C–360/10, para. 29; UPC Telekabel Wien, C-314/12, para. 37; and for the Enforcement Directive: L'Oreal v. eBay, C-324/09, para. 144).
Germany accepted this in the famous decision of the Federal Supreme Court, Internetversteigerung II., I ZR 35/04. The most recent decision by the CJEU in UPC Telekabel Wien suggests however the unavailability of such injunctions: “in order to obtain the issue of an injunction against an internet service provider, the holders of a copyright or of a related right must show that some of the customers of that provider actually access, on the website at issue, the protected subject-matter made available to the public without the agreement of the rightholders” (UPC Telekabel Wien, para. 36).
The national law is subject to Art. 9(1) of the Enforcement Directive, which states “Member States shall ensure that the judicial authorities may, at the request of the applicant: (a) issue against the alleged infringer an interlocutory injunction …; an interlocutory injunction may also be issued, under the same conditions, against an intermediary whose services are being used by a third party to infringe an intellectual property right; injunctions against intermediaries whose services are used by a third party to infringe a copyright or a related right are covered by Directive 2001/29/EC”.
The CJEU recently decided in ACI Adam C-435/12 that downloading from illegal sources does not qualify for the private copying exception. Surprisingly, this conclusion came not as a result of the three-step test considerations, but directly as an interpretation of Art. 5(2)(b) of the InfoSoc Directive.
CJEU, Public Relations Consultants Association, C-360/13 (holding that even transient copies under Art. 5(1) InfoSoc are subject to the three-step test of Art. 5(5)). In German, Hannover District Court, Judgment 550 C 13749/13, 27 May 2014 (coming to conclusion that web-streaming from illegal sources can constitute an infringement).
Angelopolous (2009); Meale (2011); Peguera (2010), paras. 24, 61–62; Koziol (2012); Halldórsdóttir (2004); Jakobsen (2011a, b) and Czychowski and Nordemann (2013) (“Die Privilegierung gilt nur für Schadensersatzansprüche (und damit zusammenhängende Ansprüche wie sie vorbereitende Auskunftsansprüche) und für bußgeld- sowie strafrechtliche Sanktionen, aber nicht für Unterlassungsansprüche”).
See more in Husovec (2014) p. 2.
Opinion of Advocat General Cruz Villalón, 26 November 2013, Case C-314/12, UPC Telekabel Wien, para. 52 (emphasis added).
See L'Oréal v. eBay, para. 136.
The research of one of the authors (Martin Husovec) explores this interrelation in a greater detail – See the project website www.accountablenotliable.org.
In spite of this, some Member States' transpositions appear to require secondary liability on the part of the intermediary. See Jakobsen (2011a).
See a simplified version of Art. 3 of the Enforcement Directive criteria in Art. 42 of the Agreement on Unified Patent Court.
For a more detailed argument of this kind see European Information Society Institute. “EISi Intervenes in Delfi AS v. Estonia before the ECHR”, Available at: http://eisionline.org/index.php/projekty-m/sudy-a-obcianska-spolocnost-m/77-delfi-echr.
See more in Husovec (2014), pp. 3–4;.
In some countries general clauses like these are used to implement human rights considerations (indirect effect) in the ordinary law; see more Seifert (2011).
The Hague Court of Appeal was reported to lift the website blocking injunction of “ThePirateBay” against Ziggo and XS4All due to considerations of ineffectiveness quoted in a qualitative study conducted by IViR; see http://www.worldipreview.com/news/dutch-court-lifts-pirate-bay-blocks.
See more in Husovec (2014), p. 2.
See CJEU, Åklagaren, C-617/10.
In the Melloni case, C-399/11, the CJEU postulated that Art. 53 of the Charter “confirms that, where an EU legal act calls for national implementing measures, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised”. An example of the need to lower the standards due to need to preserve “primacy, unity and effectiveness of the EU law” may be found in the decision of the Spanish Constitutional Court that followed the Melloni case, Case No. STC 26/2014. (See more at: http://europeanlawblog.eu/?p=2261#sthash.PqfRLuAC.dpuf). The Spanish Constitutional Court had to lower its domestic right to fair trail standards. For more on impact of Melloni decision see Weiß (2013); JHR and LB (2013). Moreover, in an increasing number of countries, the Charter itself is becoming a benchmark next to national constitutions; see Grabenwarter and Vranes (2013) and there cited decision of the Austrian Supreme Court (VfGH, U 466/11-18, paras. 35, 38).
A similar situation arises in the context of the right to information and its conflict with the data protection framework; see the CJEU cases Promusicae C-275/06, Tele 2 C-557/07, and Bonnier Audio C-461/10.
The ECtHR and CJEU usually reflect on each other’s positions. An example can be find in the case of N. S. C-411/10 and M. E. C-493/10, which followed after the decision of the ECtHR in M.S.S. v. Belgium and Greece, App. No. 30696/09, which found that, when applying the Dublin II Regulation, the Belgian Kingdom infringed Art. 3 of the ECtHR by exposing the asylum applicant to the risks linked to the deficiencies in the asylum procedure in Greece and to detention and living conditions in Greece. The CJEU subsequently adopted the view of the ECtHR and made the procedure under Dublin II Regulation more sensitive to rights of asylum seekers adjusting it by means of the EU Charter; see more in Laffranque (2012).
For the argument of incompatibility of open-ended website blocking with the Convention, see Husovec (2014).
See Seifert (2011), at 696.
See Telekabel, C-314/12 para. 57 (emphasis added).
See Seifert (2011), 698.
See Seifert (2011), 698.
UPC Telekabel Wien, Austrian Supreme Court (OGH), Judgment 4 Ob 71/14 s, 24 June 2014.
This point is already made in Husovec (2013), p. 118 et seq.
See Art. 8 of the Enforcement Directive.
Commission Staff Working Document: Analysis of the application of Directive 2004/48/EC of the European Parliament and the Council of 29 April 2004 on the enforcement of intellectual property rights in the Member States – accompanying document to the Report from the Commission to the Council, the European Parliament and the European Social Committee on the application of Directive 2004/48/EC of the European Parliament and the Council of 29 April 2004 on the enforcement of intellectual property rights COM(2010) 779 final.
As mentioned in the introduction of this part, by secondary liability we mean only tort liability of somebody else than of a direct infringer.
See Husovec (2013), p. 118, p. 124.
See more in Savola (2014).
Promusicae et al v. R Cable y Telecomunicaciones Galicia, SA, Barcelona Court of Appeals, Judgment 470/2013, 18 December 2013.
Finish courts have considered privately litigated disconnections before, Helsinki District Court, Judgment H 08/3008, 23 June 2008 and 6 August 2008; Helsinki District Court, Judgment H 11/11018, 11/11063, 11/11065, 31 March 2011, 9 May 2011 and 21 July 2011 (both courts were reported to allow them as proportionate. See more Savola (2013), at 154–156.)
We are considering here the disconnection of an individual who is using his or her Internet connection to engage in peer-to-peer file sharing, rather than the case of disconnecting a server offering illegal content. While some of the issues may be similar in both cases, since in both of them a termination of a subscriber occurs, bringing an action seeking to terminate Internet access of a private user shows a particular enforcement strategy, very different from that of going against publicly accessible websites. To be sure, there have been examples of the latter, such as the TDC case in Denmark. In that case, decided by the Danish Supreme Court on 10 February 2006, the Internet access provider TDC was enjoined from transmit infringing works from two FTP servers (xtdck.no-ip.org and scandi.myftp.org) to which it was providing Internet access, and the only way to comply with the injunction was to terminate their connection. See Jakobsen (2011a).
This was established in Art. 12 of Law 34/2002 on information society services and electronic commerce, which was in force at relevant time, and was based in Art. 15(1) Directive 2002/58.
Case C-275/06, Promusicae v. Telefónica, judgement of 29 January 2008.
See id., especially paras. 54, 55, 58, 59.
See Recital 59 of the InfoSoc Directive.
See Garrote (2007).
The LSSICE safe harbours closely follow those in the Directive, with some differences regarding the concept of knowledge, and with the addition of a safe harbour for information location tools.
This reading was held by a lower court in a case of hosting, but it was reversed on appeal. See Telecinco v. YouTube, judgement No. 11/2014, Madrid Court of Appeal, 14 January 2014.
See Arts. 12(3), 13(2) and 14(3) Directive 2000/31.
Both the InfoSoc and the Enforcement Directives note that their provisions do not affect those of E-Commerce Directive. See Recital 16 of the InfoSoc Directive and Recital 15 of the Enforcement Directive.
See Scarlet, C-70/10, para. 34.
See Art. 141 LPI.
See Art. 138 LPI.
The ruling, however, is notoriously flawed in this regard as it describes the user's activity as if it were the administrator of a linking website, which had nothing to do with the actual facts.
This provision transposes almost verbatim the liability exemption laid down in Art. 12 of the E-Commerce Directive. See the discussion above regarding the availability of injunctions against intermediaries exempted from liability.
See Art. 3(2)(b) InfoSoc Directive and Art. 116 of the Spanish Copyright Act (LPI).
Unless a preservation order is granted in parallel.
Even the way of ordering the injunction is surprising. The court directs the defendant ISP to “suspend immediately and definitively the provision of internet access to the user that utilizes the nickname nito75.” This is surprising because that nickname means nothing to the ISP. That was just the nickname the file sharer used in the P2P network, not a user name as an ISP’s customer. In order to precisely identify the user, what the ISP needs is their IP address (which was indeed mentioned in the complaint) and the precise date and time.
See the line of cases Promusicae C-275/06, Tele 2 C-557/07, Bonnier Audio C-461/10, a line that was further developed recently by a landmark decision of the CJEU in Digital Rights Ireland C-293/12, which invalidated the Data Retention Directive.
See for a critique Husovec (2013), p. 121 et seq.
The Convention applies more relaxed standards to “private rights and obligations” than to “any criminal charge” (Dombo Beheer B.V. v. The Netherlands, App. No. 14448/88, para. 32). Some of the standards are, however, applied similarly also in the civil context (Vanjak v. Croatia, App. No 29889/04, para. 58). For a discussion on whether a disconnection could be seen as a criminal charge within the autonomous meaning of Art. 6 of the Convention, see below.
See ECtHR, Ringeisen v. Austria, App. No. 2614/65; the scope of the Charter is even broader in this respect (see Weiß (2013), p. 288).
See CJEU, Transocean, Case 17/74, para. 15.
See ECtHR, Krosta v. Poland, App. No. 36137/04, para 50.
See ECtHR, Ankerl v. Switzerland, App. No. 17748/91.
See CJEU, Transocean, Case 17/74, para. 15.
See the decision of the CJEU, Ismeri Europa Srl v. Court of Auditors, C-315/99 P: “Although the adoption and publication of reports of the Court of Auditors are not decisions directly affecting the rights of persons mentioned therein, they are capable of having consequences for those persons such that those concerned must be enabled to make observations on those points in such reports which refer to them by name, before those reports are definitively drawn up”.
See ECtHR, J.J. v. The Netherlands, App. No. 21351/93 and Ferreira Alves v. Portugal, App. No. 25053/05.
Even the issue of admissibility of evidence could be potentially an issue of the Union law; see CJEU, Joachim Steffensen, C-276/01 (“the national court must verify that the national rules on the taking of evidence applicable to such an action are not less favourable than those governing similar domestic actions (the principle of equivalence) and that they do not render practically impossible or excessively difficult the exercise of rights conferred by Community law (the principle of effectiveness). In addition, the national court must consider whether such evidence must be excluded in order to avoid measures incompatible with compliance with fundamental rights, in particular the right to a fair hearing before a tribunal as laid down in Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms”).
Some courts employ some kind of “reversed due process guarantees” when they grant an injunction, but then allow for a revision upon the objection by those who prove their interest. The CJEU itself used similar mechanism to guarantee freedom of expression in its UPC Telekabel Wien decision (para. 57).
Indeed if the proceedings that result in an Internet disconnection injunction would be qualified only as a civil issue, then Art. 7 of the Convention would not apply (Kot v. Russia, App. No. 20887/03, para. 38), and the ambiguous legal basis could only be addressed within the proportionality exercise.
Engel and other v. The Netherlands, App. No. 5100/71.
If the national law classifies it as a criminal charge, then so does automatically the Convention.
See more in Grabenwarter (2014).
See Albert v. Romania, App. No. 31911/03, Žugić v. Croatia, App. No. 3699/08, Thomas v. France, App. No. 12821/01.
Paksas v. Lithuania, App. No. 34932/04. Cf. Art. 49 of the EU Charter.
Kafkaris v. Cyprus, App. No. 21906/04, para. 150.
On Art. 7 “quality of the law” context; see more in Grabenwarter (2014), pp. 178–181.
Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (hereinafter “Framework Directive”).
Article 1(3a) Framework Directive, as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services (Text with EEA relevance).
Id. (emphasis added).
ECtHR (2nd Section), 10 December 2012, Yildirim v. Turkey (App. No. 3111/10), para. 54.
See Conseil Constitutionnel, Decision no 2009-580 DC, 10 June 2009 (English translation available at http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/2009_580dc.pdf).
See Art. 11 of the Charter. See also ECtHR (2nd Section), 10 December 2012, Yildirim v. Turkey (App. No. 3111/10), paras. 50–55. Other rights, such as users' privacy or the ISP's freedom to conduct a business are also liable to be affected.
Cf. Art. 52(1) of the Charter.
Idem. The Convention offers specific tests for different rights, requiring the restriction to be provided by law and to be necessary in a democratic society in the interests of some general interests, including for the protection of rights of others. See, for instance, Art. 10 of the Convention.
Council of the European Union (2014). EU Human Rights Guidelines on Freedom of Expression Online and Offline. http://eeas.europa.eu/delegations/documents/eu_human_rights_guidelines_on_freedom_of_expression_online_and_offline_en.pdf. Accessed 22 August 2014.
It is submitted that national legislation providing for administrative graduate response schemes which impose some duties on the ISPs to prevent, or to put an end to, an infringement may also be seen as implementing Art. 8(3) InfoSoc, and thus subject to the Charter standards.
See Telekabel, C-314/12 para. 33 (“To exclude internet service providers from the scope of Article 8(3) of Directive 2001/29 would substantially diminish the protection of rightholders sought by that directive”). See also Tele 2, C-557/07, para. 45.
See Scarlet, C-70/10.
See Telekabel, C-314/12.
A great account of the ECtHR case law in this respect is provided by Advocate General Cruz Villalón in Scarlet Extended, who summarizes it as follows: “The ‘law’ must therefore be sufficiently clear and foreseeable as to the meaning and nature of the applicable measures, and must define with sufficient clarity the scope and manner of exercise of the power of interference in the exercise of the rights guaranteed by the ECHR.”
Cf. Art. 52(1) of the Charter. See also Art. 1(3a) of the Framework Directive, requiring the measure to be both proportionate and necessary.
The situation would of course be different if right holders would decide to apply for a high number of injunctions.
See Recital 59 InfoSoc Directive.
Even this would of course entail blocking legitimate traffic, for instance, services relaying on P2P protocol, such as Skype, or Spotify, or the transmission of non-copyrighted files via P2P. Nonetheless, the restriction would be certainly less burdensome for the user.
See para. 16.
A different scenario would be that were all the access providers in the country were enjoined from providing their services to the allegedly infringer. Still, this person could easily circumvent such a general prohibition, for instance using someone else's connection.
Of course, the argument works also the other way: the less likely the is user to suffer a real isolation from the Internet, the lower will be the restriction on his right to freedom of expression and access to the information. See Strowel (2009), at 82.
In the context of website blocking, the CJEU has held that the blocking measures “must have the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging internet users who are using the services of the addressee of that injunction from accessing the subject-matter made available to them in breach of that fundamental right”. See UPC Telekabel Wien, C-314/12, para. 63.
See, e.g. Vodafone and Others, C-58/08, para. 52.
Weiß (2013), p. 290. It would be worth to look into internal consistency of the CJEU case law in this respect as well, given that the test in various decisions does not seem to always build a coherent framework.
See Telekabel, C-314/12, para. 56 (stating, in the context of website blocking, that the measure “must serve to bring an end to a third party’s infringement of copyright or of a related right but without thereby affecting internet users who are using the provider’s services in order to lawfully access information. Failing that, the provider’s interference in the freedom of information of those users would be unjustified in the light of the objective pursued”). See also the ECtHR ruling in Yildirim v. Turkey.
In his report to the UN Human Rights Council on the promotion and protection of the right to freedom of opinion and expression, Special Rapporteur Frank La Rue considered that “cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law [is] disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights”, and urged States “to repeal or amend existing intellectual copyright laws which permit users to be disconnected from Internet access, and to refrain from adopting such laws.” See Special Rapporteur Frank La Rue, “Report on the promotion and protection of the right to freedom of opinion and expression”, Human Rights Council, U.N. Doc. A/HRC/17/27 (16 May 2011) p. 21, available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf.
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The authors would like to thank Professor Annette Kur, Cédric Manara, Ellen Wesselingh, Pekka Savola and the IIC peer reviewer for their inspiring comments on an earlier draft.
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Husovec, M., Peguera, M. Much Ado about Little – Privately Litigated Internet Disconnection Injunctions. IIC 46, 10–37 (2015). https://doi.org/10.1007/s40319-014-0292-x
- ISP liability
- Injunctions against intermediaries
- Secondary liability
- Internet disconnection injunctions
- Graduated response
- Three strikes