Irrespective of establishment of liability, EU law ensures that rights holders have the possibility to apply for an injunction against intermediaries whose services are used by third parties to infringe their Intellectual property rights (IPR).
The term ‘intermediary’ is broader than ISSP and includes every actor who engages in an economic activity in the course of which he or she is in a position to prevent third-party infringements.
Some of the actors that the CJEU found falling within the definition of intermediary for the purpose of receiving an injunction include internet access providers, social media platforms, auction websites, an operator of open wireless.
The scope of injunctions against internet intermediaries has been discussed by the CJEU in a number of cases. For the purpose of study, it suffices to recall the following general principles that can be extracted from the CJEU jurisprudence:
- injunctions can be aimed at both repressing an existing infringement and preventing future infringements;
- they must be effective, proportionate and not impact on fundamental rights and freedoms of intermediaries and internet users;
- they do not have to lead necessarily to a complete cessation of the infringement.
The most widely used type of injunction in connection with IPR online infringements is the blocking injunction, i.e. an order to internet access providers to block users’ access to a certain list of websites. These injunctions have proven to be more effective than orders or requests to hosting service providers to take down offending websites.
This is because operators of these websites can easily move to another hosting service, and to move again to hosts based in remote jurisdictions which do not respond to notice and takedown requests. By contrast, blocking injunctions to internet access providers make the website unavailable to users in the country where the order is made regardless of the host where the website is located.
The CJEU in Telekabel has found this type of injunction compatible with EU law, providing that they do not deprive internet users from the possibility of lawfully accessing the information available, and they have the effect of preventing (or of making more difficult) the access to infringing content.
Blocking injunctions can specify not only the domain name and IP address of the website(s) to block access to, but also any further domain names under which infringements relating to the same rights are committed.
Such ‘dynamic’ orders extend the efficacy of blocking access to a website and allow preventing future infringements. Although it may be argued that those orders are in line with the existing CJEU jurisprudence, no referral to the CJEU has yet been made on their compatibility with EU law.
Live blocking injunctions
Blocking Injunctions can work by requiring internet access providers to block users’ access to servers hosting infringing streams of live sporting events. The so-called ‘live’ blocking orders are particularly effective in tackling illegal IPTV, as they target specifically the servers that stream illegal content during live events broadcast. These orders have been first issued in the UK and are rapidly gaining popularity in other EU Member States as well.
These injunctions request search engines to de-index infringing websites, so that the links to those websites do not appear in the list of search results. Orders to de-index video streaming websites have been issued in France and in Portugal.
Major search engines adopt a policy of de-indexing websites that violate their terms and conditions (which include respect of IPR) upon receiving notice from the rights holder.
Disclosure of information
A court order can impose to internet access providers the disclosure of the identities associated with IP addresses used to infringe copyright. This remedy has been used extensively in the years 2000-2010 in the USA by the recording industry, in the context of so-called ‘John Doe proceedings’ against users who engaged in illegal file sharing of music.
Similar strategies have been applied in Europe as well with alternate success, with some national courts refusing to grant an injunction to disclose personal information on the ground of prevailing privacy rights of the individuals.
The legitimacy and scope of disclosure of information has attracted the scrutiny of the CJEU in several cases. In Promusicae the court ruled that the Enforcement Directive does not preclude Member States from laying down obligations to disclose personal data in the context of civil law proceedings (although nor does it require it).
However, such obligations need to ensure a fair balance between the rights of copyright holders and those of internet users and must abide the principle of proportionality. The point has been reiterated in LSG v Tele2 and in Bonnier.
In the latter case, the court ruled that the obligation laid down by Sweden was likely to ensure a fair balance between the rights involved. Under Swedish law, for an order for disclosure to be made, the claim must satisfy three conditions, namely
- a) there must be clear evidence of an infringement,
- b) the information must facilitate the investigation of the infringement and
- c) the reasons for the measure must outweigh the nuisance or harm suffered by the person affected.
This remedy has not been used so far in the context of illegal IPTV, and it is questionable whether national courts would allow disclosure of end users’ personal information.
A different set of considerations applies to disclosure orders targeting other actors of the illegal IPTV ecosystem, such as sellers and resellers of illegal IPTV services and devices.
In this connection, the order issued by an English court against IPTV subscribers to identify the persons who had provided them with the goods and/or services to screen infringing football games seems proportionate and in line with CJEU jurisprudence.