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Guidance on IPRED: ensuring a balanced regime for injunctions and intermediaries – filtering systems and dynamic injunctions

According to Article 15(1) of the e-Commerce Directive, Member States are prohibited from imposing a general monitoring obligation on online intermediaries within the meaning of Articles 12-14 of that Directive. Such an obligation would also be incompatible with the general requirements of fairness, proportionality and any measures not being excessively costly set out in Article 3 of IPRED.

At the same time, Recital 47 of the e-Commerce Directive recalls that Article 15 only concerns monitoring obligations of a general nature and does not automatically cover monitoring obligations in a specific case. In particular, it does not affect orders by national authorities in accordance with national legislation. Recital 48 adds that this Directive does not affect the possibility for Member States to require the service providers concerned to apply reasonable duties of care in order to detect and prevent certain types of illegal activities.

Therefore, where appropriate and within the limits of the abovementioned provisions, certain due diligence obligations may be imposed e.g. on providers of online hosting services with a view to preventing the upload of IPR infringing content identified by rightholders and in cooperation with them.

When ordering intermediaries to take certain measures aimed at preventing further infringements in accordance with Articles 9(1)(a) or 11 of IPRED, the competent judicial authorities may, where appropriate, issue injunctions which entail specific monitoring obligations. However, the prohibition of imposing a general obligation to monitor resulting from Article 15(1) of the e-Commerce Directive and Article 3 of IPRED, read in conjunction with the requirements stemming from the applicable fundamental rights, preclude intermediaries from being made subject by means of such injunctions to obligations requiring them to install and operate excessively broad, unspecific and expensive filtering systems of the type and in the circumstances at issue in the Scarlet Extended and SABAM cases.

Dynamic injunctions are injunctions which can be issued for instance in cases in which materially the same website becomes available immediately after issuing the injunction with a different IP address or URL and which is drafted in a way that allows to also cover the new IP address or URL without the need for a new judicial procedure to obtain a new injunction. The possibility of issuing such injunctions exists, inter alia, in the United Kingdom and Ireland.

The Commission takes note (de) of the fact that some Member States provide for the possibility of issuing forward-looking, catalogue-wide and dynamic injunctions. Whilst this issue is not expressly addressed in IPRED, the Commission considers that, under the condition that necessary safeguards are provided for, such injunctions can be an effective means to prevent the continuation of an IPR infringement.