Proportionality of Website Blocking: Internet Connectivity Providers as Copyright Enforcers

Author:Pekka Savola
Pages:116-138
SUMMARY

Internet connectivity providers have been ordered to block access to websites facilitating copyright infringement in various EU countries. In this paper, the proportionality of these enforcement measures is analysed. After addressing preliminary questions, the recent CJEU ruling UPC Telekabel Wien (C-314/12) and then case law from all Member States are examined from the perspective of... (see full summary)

 
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2014
Pekka Savola
116
2
Proportionality of Website Blocking:
Internet Connectivity Providers as Copyright Enforcers
by Pekka Savola*, Lic.Sc.(Tech.), Master of Laws, LL.D. candidate. Legal Counsel at CSC–IT Center for Science Ltd,
Researcher at University of Helsinki, Finland,
© 2014 Pekka Savola
Everybody may disseminate this ar ticle by electroni c means 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 obtaine d at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8 .
Recommended citation: Pekk a Savola, Proporti onality of Website Blocking : Internet Connectivit y Providers as Copyri ght
Enforcers, 5 (2014) JIPITEC 116, para. 1.
Keywords: Proportionality, Fundamental Rights Conflicts, Copyright Enforcement, Website Blocking, ISP
is provided. The major observation is that the under-
lying goal of copyright enforcement has implications
on how the scale tilts. In particular, ineffective en-
forcement mechanisms can be more easily accepted
if the goal of symbolic, educational or politically mo-
tivated enforcement is considered legitimate. On the
other hand, if the goal is to decrease the impact of in-
fringement, higher efficiency and economically quan-
tifiable results may be required.
Abstract: Internet connectivity providers have
been ordered to block access to websites facilitat-
ing copyright infringement in various EU countries.
In this paper, the proportionality of these enforce-
ment measures is analysed. After addressing prelim-
inary questions, the recent CJEU ruling UPC Telekabel
Wien (C-314/12) and then case law from all Member
States are examined from the perspective of propor-
tionality. Finally, five criteria are submitted for pro-
portionality analysis, and a proportionality evaluation
A. Introduction
1
There has been an increasing tendency to oblige
various kinds of intermediaries to perform web

1
This paper focuses

(Internet connectivity, i.e. access providers), means
(court order to block access to a website) and
perspective (proportionality of such order).2
2
Intermediaries are typically faultless third parties
with respect to the dispute between right holders
and infringers.3 Therefore, passive or neutral
intermediaries are generally exempt from liability
within varying constraints. To balance the lack of
liability, a court may issue an injunction ordering for

4
Indeed, intermediaries are an attractive tool to
enforce local policies on foreign sites.5 However,
broad liability for activities that intermediaries
cannot and need not control or monitor would
result in inter alia
censorship and increased operating costs.6
3
Proportionality evaluation is depicted as three or
four steps. The initial and sometimes omitted step is
the legitimacy of the pursued objective.
7

of the three main stages are suitability and necessity
of the means in achieving the objective, i.e. that
the goal can be achieved and there are no better
means, respectively. Third, the actual balancing part
is proportionality in the narrow sense (stricto sensu),
i.e. whether the burden of the means is excessive in
relation to the objective sought.8
4
In this context, proportionality analysis concerns
  
implementing EU legislation. Because blocking
measures are unlikely to affect the fundamental
freedoms,9 the evaluation occurs between
     

the supremacy of EU law prevails.
10
CJEU case law
provides minimum and maximum standards11 and
guidelines that must be applied when national courts
interpret EU law. Issues at stake are the effectiveness
of protecting the right holders’ intellectual property
in contrast to the costs and limits on the freedom to
conduct a business on the ISP and the limitations of
Proportionality of Website Blocking
2014
117
2
freedom of information (expression) on the users.12

aspect.13 The evaluation is augmented with more
intense scrutiny.14
5
 
discusses the differences in liability exemptions
between hosting and connectivity providers, and
what constitutes a general monitoring obligation.
Then various parties’ interests, EU IPR enforcement
principles, and the effect of national legislation are
 
we move on to Section C, where the case law of
CJEU and all Member States is covered from the
proportionality perspective mixed with analysis
and commentary. Using these as a basis, Section D

of website blocking. Finally, Section E provides
proportionality analysis. Brief conclusions are
presented last in Section F.
B. Preliminary Considerations
I. Legal Basis of Website
Blocking Injunctions
6
Article 8(3) of the Infosoc Directive15 obliges
Member States to provide a possibility for copyright
injunctions against intermediaries:
Member States shall ensure that rightholders are
in a position to apply for an injunction against
intermediaries whose services are used by a third
party to infringe a copyright or related right.
7 Per Recital 59, the conditions and modalities are to
be determined in national legislation. Essentially
identical provisions also exist for other intellectual
property rights of Article 9(1)(a) and 11 of the
Enforcement Directive.16 Indeed, the E-Commerce
    
injunctions against connectivity providers in Article
12(3), but on the other hand prohibits general
monitoring obligations in 15(1):

for a court or administrative authority, in
accordance with Member States’ legal systems,
of requiring the service provider to terminate or
prevent an infringement.

obligation on providers, when providing the
services covered by Articles 12, 13 and 14, to
monitor the information which they transmit or
store, nor a general obligation actively to seek facts
or circumstances indicating illegal activity.
II. Different Providers and
Liability Exemptions
8
While Internet service providers are not liable for
information transmitted or stored, they may be
subject to various obligations.17 As connectivity and
hosting providers provide a different kind of service,
the conditions and scope of potential obligations also
differ.18
9 The liability exemption of connectivity providers is
based on neutrality, passivity and technical nature of
automatic communication. According to the recital,
this implies lack of knowledge and control over the
transmitted information; deliberate collaboration
in order to undertake illegal acts is also excluded.19
10
On the other hand, the exemption of hosting
providers is conditional on awareness or knowledge
of illegal activities or facts or circumstances from
which illegality is apparent. Upon obtaining
awareness of illegal material, hosting providers
also need to act expeditiously to remove or disable
access to it. The exemption does not apply if the
provider has authority or control over the user
and the content.20 The awareness of facts relating
to illegality appears to have been the grounds to
exclude the operators of sites such as The Pirate Bay
from the hosting defence; even if material on the site
might not be infringing, its role in overall infringing
activities has been apparent.21
11
In the latest case on hosting providers, 
it was held that the operator must not have an active
role allowing it to have knowledge of the data stored.
To measure awareness (or “neutrality”
22
), a standard
of diligent economic operator was established as to
when illegality should have become apparent.23
12
This interpretation is inapplicable to connectivity
providers, because their liability exemption is not
tied to knowledge or awareness in the same manner
as hosting providers.
24
Further, their role is more
passive, neutral and automatic, and transmitted
data is transitory. They also have no obligation to
act upon obtaining awareness of illegality
25
unless
explicitly required by national law as provided by
Article 15(2) of the E-Commerce Directive.26
III. Restrictions on General
Monitoring and Orders
13
The prohibition against imposing monitoring
obligations of a general nature applies to all kinds

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