Injunctions against innocent Third Parties: The Case of Website Blocking

• Author: Martin Husovec
• Position: Doctoral Fellow at International Max Planck Research School for Competition and Innovation at Max Planck Institute for Intellectual Property and Competition Law in Munich
• Pages: 116-129

2012

Martin Husovec

116

4

Injunctions against Innocent Third Parties:

The Case of Website Blocking

by Martin Husovec, Doctoral Fellow at International Max Planck Research School for Competition and Innovation

at Max Planck Institute for Intellectual Property and Competition Law in Munich.

© 2013 Martin Husovec

Everybody may disseminate this ar ticle by electronic m eans and make it available for downlo ad under the terms and

conditions of the Digita l Peer Publishing Licence (DPPL). A copy of the license text may be obtained a t http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8 .

Recommended citation: Mar tin Husovec, Injunctions against Innocent Th ird Parties: The case of Website Bl ocking 4 JIPITEC,

2, para. 116.

Keywords: Injunctions; Third Parties; InfoSoc Directive; Tort Law; In Rem actions; Enforcement Directive; Liability of

ISPs; Intermediaries

cept of ‘in rem actions’ (actio in rem negatoria). Thus

the term ‘in rem injunctions’ is coined to describe this

paradigm of injunctions. Besides the theoretical foun-

dations, this paper explains how a system of injunctions

    

regulation of negative externalities of online technol-

ogy and explores the expected dangers of derailing in-

junctions from the tracks of tort law. The author’s PhD

   

an extension of the intellectual property entitlements

by the in rem paradigm, along with its limits or other

solutions – is left out from the paper.

Abstract: The paper discusses the phenome-

non of injunctions against third parties that are inno-

cent from the tort law perspective. One such type of in-

junction, website blocking, is currently appearing in

the spotlight around various European jurisdictions as

a consequence of the implementation of Article 8(3) of

the Information Society Directive and Article 11 of the

Enforcement Directive. Website-blocking injunctions

are used in this paper only as a plastic and perhaps also

canonical example of the paradigmatic shift we are fac-

ing: the shift from tort-law-centric injunctions to in rem

injunctions. The author of this paper maintains that the

theoretical framework for the latter injunctions is not

in the law of civil wrongs, but in an old Roman law con-

A. European Union law

1 The last two years in Europe were marked by an in-

teresting growing enforcement practice of priva-

tely litigated website blocks. In more than eight Eu-

ropean jurisdictions, various blocking orders were

reportedly issued.1 The website-blocking cases are

usually civil proceedings of private plaintiffs holding

copyright or trademark rights against the Internet

access providers, who as defendants are asked to em-

ploy certain technical means to make the access to



(an uncircumventable website block is technically

impossible). In these cases, the plaintiffs invoke in-

junctions against Internet access providers who are

not liable in terms of tort law. The vehicle used to re-

ceive such injunctions is the national implementa-

tion of Article 8(3) of the InfoSoc Directive (for co-

pyright and related rights) and the third sentence of

Article 11 of the Enforcement Directive (for other in-

tellectual property rights).

I. Injunctions against

intermediaries

2 The wording of the relevant part of the provision of

the Enforcement Directive reads:

Member States shall also ensure that rightholders are in a position

to apply for an injunction against intermediaries whose servi-

ces are used by a third party to infringe an intellectual pro-

perty right.