Guidance on IPRED: ensuring a balanced regime for injunctions and intermediaries – scope of injunctions and digital evidence

While it is initially the applicant who is to specify in his application the scope of an injunction he considers appropriate to prevent an imminent infringement or to stop an ongoing one, it is the competent judicial authority which is to decide on that application.

That judicial authority should assess the application by taking due account of the specific characteristics of the case and any injunction issued must be in accordance with the principle of proportionality and the other general requirements laid down in Article 3 as well as the applicable fundamental rights.

It is not necessary that the measures required by the injunction lead to a complete cessation of the IPR infringements; it can under certain circumstances be sufficient that they make the infringing acts difficult or seriously discourage them. At the same time, the addressee of the injunction should not be required to make unbearable sacrifices. In litigation relating to copyright infringement, the CJEU indicated that the measures adopted by an internet service provider, as an intermediary to whom the injunction was addressed, must be strictly targeted.

Accordingly, in case of an infringement of IPR consisting of the publication of a certain content online, it may be appropriate for an injunction addressed to an intermediary to require this intermediary to take down or disable access to that content.

During the evaluation it was pointed out that evidence in digital form may be hard to preserve and that images of the content of a webpage at a certain moment (so-called ‘screenshots’) are in some situations not accepted as evidence by the competent judicial authorities in some Member States. However, the use of screenshots is one of the most common ways to demonstrate that a certain activity took place in the online environment.

In practice, a screenshot can, for instance, demonstrate a characteristic of the online distribution of an infringing good, as the content of a webpage may illustrate what kind of good was available for sale, by whom, on which territory and targeted at which audience. As such, they can help rightholders to effectively enforce their rights also in an online context. Likewise, defendants may also wish to rely on screenshots to contest allegations of IPR infringing behaviour.

In some Member States the current practice of the competent judicial authorities is to admit screenshots as evidence, on the condition that they have been taken by a notary or bailiff and that they indicate the allegedly infringing goods or services in a sufficiently visible and precise manner. In the Commission’s view (de) such approach is, generally speaking, compatible with IPRED.