The Role of the Principle of Effective Judicial Protection in Relation to Website Blocking Injunctions
| Author | Saulius Lukas Kaleda |
| Pages | 216-225 |
2017
Saulius Lukas Kalėda
216
3
The Role of the Principle of Effective
Judicial Protection in Relation to
Website Blocking Injunctions
by Saulius Lukas Kalėda*
© 2017 Saulius Lukas Kalėda
Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and
conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8.
Recommended citation: Saulius Luka s Kalėda, The Role of the Principle of Ef fective Judicial Protect ion in Relation to Website
Blocking Injunctions, 8 (2017) JIPITEC 216 par a 1.
business (Article 16), and the rights to privacy and to
data protection (Articles 7 and 8). However, in rela-
tion to new types of injunctions potentially affecting
the rights of multiple third parties, such as blocking
injunctions, more weight should be given to proce-
dural fundamental rights stemming from Article 47
of the Charter. This new perspective presents sev-
eral advantages. Limitations resulting from Article 47
of the Charter constitute a stronger imperative than
those deduced from the application of the principle of
proportionality. To a large extent, they must be ap-
plied by the court of its own motion. In contrast to
the principle of proportionality, fair trial requirements
form part of European and national public policy pro-
visions, potentially limiting mutual recognition of ju-
dicial decisions imposing injunctions. In the absence
of harmonisation, the application of Article 47 of the
Charter could therefore lead to the establishment of
a minimum procedural standard, which can be in-
voked in order to achieve a certain degree of unifor-
mity. This would be particularly important if blocking
injunctions were to be used on an EU-wide basis.
Abstract: The use of internet blocking to pre-
vent access to illegal content requires the adop-
tion of rigorous procedural safeguards. The neces-
sity of such safeguards is even more pressing when
this primarily public tool is transposed into the do-
main of private enforcement, for the purposes of su-
pressing copyright and trademark infringements. In-
junctions in the sphere of IP rights are governed by a
net of interrelated EU legal provisions, contained in
the Infosoc and the Enforcement directives (2001/29
and 2004/48), the E-Commerce directive (2000/31),
and the EU net neutrality (open internet) rules (Reg-
ulation 2015/221). However, the core requirements
stem from the application of the principle of propor-
tionality and the search for a balance between com-
peting fundamental rights. According to case law of
the EU Court of Justice, the limitations upon injunc-
tions in relation to IP rights are deduced in the pro-
cess of balancing the substantive fundamental rights
enshrined in the EU Charter: on the one hand, the
right to the protection of intellectual property (Arti-
cle 17(2)); and on the other, the freedom of expression
and information (Article 11), the freedom to conduct
A. Introduction
1 The difculties of enforcing IP rights in the online
environment encourage the search for new tools.
This consideration is reected by the recent
adoption of website blocking injunctions in the
context of copyright and trade mark enforcement.1
* PhD (Jagiellonian University, Kraków), Legal Secretary at
The growing importance of this new tool stands in
the Court of Justice of the European Union (Chambers of
Advocate General M. Szpunar). The views expressed are the
author’s own.
1 The year 2015 was dubbed ‘the year of blocking injunctions’
by Prof. E. Rosati on IPKat and in her editorial to Journal of
Intellectual Property Law & Practice (see
blogspot.lu/2014/12/2015-year-of-blocking-injunctions.
html>).
Keywords: Copyright enforcement; injunctions; online intermediaries; judicial protection; website blocking
The Role of the Principle of Effective Judicial Protection in Relation to Website Blocking Injunctions
2017
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contrast to the absence of harmonised EU regulatory
framework. This lacuna is partly compensated by the
case law of the Court of Justice of the European Union
(CJEU – or ‘the Court’) interpreting the requirement
of striking a fair balance between fundamental
rights. The application of injunctions in general,
and blocking injunctions in particular, has therefore
become an important terrain for the application of
the EU Charter of the Fundamental Rights.
2
The Court’s established case law applying the Charter
to injunctions concentrates on the requirement to
balance substantive fundamental rights: on the one
hand, the right to the protection of intellectual
property (Article 17(2) of the Charter); on the other,
the freedom of expression and information (Article
11), the freedom to conduct business (Article 16),
as well as the fundamental rights to privacy and
to data protection (Articles 7 and 8).2 This case
law and the related national judicial practice have
motivated a profound doctrinal debate. Several
authors discuss the precise content of the limitations
upon injunctions, which can be deduced from the
proportionality test and the need to respect the
rights of internet users.3 This debate largely leaves
out the underlying procedural rights.
3
Procedural safeguards stemming from the right
to effective judicial protection and the right to a
fair trial guaranteed by Article 47 of the Charter
are necessary preconditions for the protection
of substantive rights. They also constitute the
conditions of legality for any judicial procedure,
including the procedure for injunctive relief. In
the absence of an explicit legislative framework,
Article 47 constitutes the source of procedural
requirements, which can ensure the right to a fair
2 See judgments in Promusicae (C-275/06, EU:C:2008:54),
Scarlet Extended (C-70/10, EU:C:2011:771), SABAM (C-
360/10, EU:C:2012:85), UPC Telekabel Wien (C-314/12,
EU:C:2014:192), Mc Fadden (C-484/14, EU:C:2016:689).
3 See M. Husovec, Injunctions against innocent third parties:
the case of website blocking, JIPITEC 4 (2012) p. 116; P. Savola,
Proportionality of Website Blocking: Internet Connectivity
Providers as Copyright Enforcers, JIPITEC 5 (2014) p. 116; A.
Marshoof, The blocking injunction – a critical review of its
implementation in the UK in the context of the EU, IIC 46
(2015) p. 632; Ch. Geiger, E. Izyumenko, The Role of Human
Rights in Copyright Enforcement Online: Elaborating a Legal
Framework for Website Blocking, SSRN Electronic Journal
at Researchgate (January, 2016); M. Schaefer, ISP liability
for blocking access to third-party infringing content,
EIPR 38 (2016) p. 633; J. Riordan, The Liability of Internet
Intermediaries, Oxford OUP 2016, Chapters 14 and 15 at p.
461 et seq. Savola concludes that procedural requirements
and national modalities, among others, relating to the
procedural situation in court and different conceptions of
preliminary injunctions, can be examined in the context
of proportionality evaluation or under local procedural
rules depending on their characteristics, while observing
that in-depth discussion is not possible. Savola: Internet
Connectivity Providers as Involuntary Copyright Enforcers:
Blocking Websites in Particular (2015), text related to fns 67.
trial in the context of injunctive relief.4
B. Application of blocking
injunctions to copyright and
trade mark infringements
4
The need for appropriate procedural safeguards
is particularly explicit in relation to blocking
injunctions.
5
Website blocking has not yet been globally accepted
as being an effective and appropriate IP enforcement
tool.
5
In Europe, Germany and the Netherlands have
traditionally been the least receptive to blocking for
the purpose of copyright enforcement, although
this attitude is changing.6 Most countries in Europe
have legislation which permits the courts to issue
injunctions against third parties in the context of
IP infringements. This legislation can usually be
invoked in order to obtain blocking injunctions
against internet service providers, although the
scope of such measures varies widely.7 In UPC
Telekabel Wien,
8
the Court has claried that website
blocking lies within the scope of enforcement
instruments available under EU copyright law.
6
Blocking injunctions raise more controversies
than other IP enforcement tools. First, in contrast
to ‘notice and takedown’ procedures, they are not
a part of the established statutory safe harbours
applicable to online intermediaries.9 Secondly,
they are not concerned with the removal of illegal
content, but instead with suppressing public access to
information on the internet. The technical tools used
are similar to those employed by the governments
for the purposes of internet censorship. This explains
the political discourse, which favours “deleting”
4 See with regard to the right to a fair trial in relation
to internet disconnection injunctions, M. Husovec, M.
Peguera, Much Ado about Little – Privately Litigated
Internet Disconnection Injunctions, IIC 46 (2015) p. 27, and
with regard to blocking injunctions in the eld of trademark
protection, A. Marshoof, The blocking injunction, op. cit., p.
632.
5 For instance, concerns based on the grounds of the
freedom of speech, security and effectiveness of blocking
measures have so far prevented their wider adoption in
the US. See “Green Paper on Copyright Policy, Creativity,
and Innovation in the Digital Economy” (2013),
www.uspto.gov/sites/default/les/news/publications/
copyrightgreenpaper.pdf>.
6 The blocking injunction was recently authorised by the
German BGH, see BGH I ZR 174/14 – Goldesel.
7 See J. Riordan, The Liability of Internet Intermediaries, op.
cit., p. 504.
8 C-314/12, EU:C:2014:192, interpreting Article 8(3) of the
Infosoc Directive (2001/29).
9 See Article 14 of the E-Commerce Directive (2000/31).
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Saulius Lukas Kalėda
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the infringing website over the “blocking” of that
website.
10
A degree of internet censorship is justied
in modern democratic society.
11
However, until quite
recently, website blocking was considered as a tool
which could be directed at public order targets, in
particular, to ght child pornography and, even
in this case, subject to specic safeguards.12 Its
extension to private law targets, such as copyright
and trademark infringements, is a qualitatively new
dimension.13 The use of blocking for the purpose
of private enforcement amplies the need for
procedural safeguards.
C. The role of Article 47 of the Charter
in relation to injunctive relief
7
While conditions for granting injunctions in relation
to IP rights are a matter of national law,
14
EU law
contains several limitations upon injunctions.
Given the lack of explicit provisions, such as those
envisaged in ePrivacy Directive (2002/58), the Court
has established those limitations by interpreting
the fundamental rights.15 Thus, the overarching
principles derived from the Charter constitute a
“maximal admissible ceiling” for the application of
national rules.16 The Court’s approach to resolving
conicts of IP with other fundamental rights has
drawn some criticism, as appearing to some extent
motivated by pro-IP harmonisation bias.17
10 As the debate in Germany, in 2010, in relation to sites
containing child pornography (eg
en/bundestag-looks-to-delete-child-pornography-
websites/a-15575254>).
11 The right to freedom of expression and information (Article
prior restraints on publication. See ECtHR, Yıldırım v.
Turkey (3111/10, para 47). See also Y. Akdeniz, To Block or
Not to Block: European Approaches to Content Regulation,
and Implications for Freedom of Expression [in] New
Technologies and Human Rights (Collected Courses of the
Academy of European Law), Ashgate 2013, p. 56.
12 See Article 25(2) and recital 47 of Directive 2011/93 on
combating the sexual abuse and sexual exploitation of
children and child pornography (OJ 2011, L 335, 261).
13 See, for a critical view on the appropriateness of blocking
injunctions in the context of trade mark infringements, C.
O’Doherty, Online trade mark and copyright infringement
injunctions, CTLR (2016) 22, p. 79.
14 See recital 59 in the preamble to Directive 2001/29 and
recital 23 in Directive 2004/48.
15 See judgments in Promusicae (C-275/06, EU:C:2008:54, paras
61-68), Scarlet Extended (C-70/10, EU:C:2011:771, paras 42-
46) and UPC Telekabel Wien (C-314/12, EU:C:2014:192, para
46).
16 See in relation to internet disconnection injunctions, M.
Husovec, M. Peguera, Much ado about little, op. cit., p. 17.
17 See M. Husovec, Intellectual Property Rights and Integration
by Conict: The Past, Present and Future, CYELS 18 (2016),
p. 239.
8 In imposing limitations upon injunctions, the Court
has so far relied on the balancing between substantive
fundamental rights, and has not yet examined
the applicability of procedural rights stemming
from Article 47 of the Charter. This may partly be
explained by the fact that the issue of procedural
rights has not been explicitly put before the Court
in this context. One should also keep in mind that
the conceptual analysis related to the application
of Article 47 is different from the one involved in
balancing substantive fundamental rights.18 Article
47 of the Charter is not one of the competing
principles involved in the balancing. Rather, the
requirement of effective judicial protection underlies
the whole process and serves as a “transmission belt”
facilitating the effective enforcement of substantive
rights. Those requirements cut both ways, ensuring
effective enforcement but also protecting those who
seek to defend themselves against it.19
9
Even though the Court has not yet referred to
Article 47 in the context of IP injunctions, there is
no doubt that Article 47 of the Charter is applicable
to injunctive proceedings.20 It is also true that Article
47 of the Charter has often been considered in
relation to the person seeking to enforce its rights,
the potential applicant in the judicial proceedings.
However, Article 47 constitutes an overarching
provision in relation to all aspects of fair trial, which
lays down procedural guarantees applicable not
only to the applicant, but also to the defendant,
21
potential co-defendants,
22
and potential third parties
whose substantive rights might be affected by the
procedure.23
10
Insofar as the safeguards relating to injunctions
concern the injunctive procedure itself, they can
be analysed from the perspective of Article 47
requirements. This perspective presents several
advantages. Limitations resulting from Article 47
of the Charter have stronger imperative value than
those deduced from the test of proportionality. To
18 See S. Prechal, The Court of Justice and Effective
Judicial Protection: What Has the Charter Changed? [in]
Fundamental Rights in International and European Law,
Springer 2015, p. 153.
19 See M. Safjan, D. Düsterhaus, A Union of Effective Judicial
Protection: Addressing a Multi-level Challenge through
the Lens of Article 47 CFREU, Yearbook of European Law 33
(2014) p. 3.
20 See, with regard to asset freezing injunction, judgment in
Meroni (C-559/14, EU:C:2016:349).
21 See judgment of 11 September 2014 in A (C-112/13,
EU:C:2014:2195, para 51 and the case-law cited).
22 In terms of procedural safeguards, the right to a fair trial
under Article 47 of the Charter essentially means that the
defendants (and co-defendants) must have the opportunity
to effectively challenge the application. See opinion of AG
Bobek in Dockevičius (C-587/15, EU:C:2017:234, point 111).
23 See, for instance, judgment in Meroni (C-559/14,
EU:C:2016:349).
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a large extent, they must be applied by the court
of its own motion. In contrast to a proportionality
test, which must be applied in casu, Article 47
requirements can lead to the establishment of a
uniform procedural standard. While observance
of proportionality pertains to the substance of the
case, and cannot constitute an obstacle to mutual
recognition, Article 47 requirements form part
of public order provisions potentially limiting
mutual recognition of judicial decisions imposing
injunctions. This could be particularly important if
blocking injunctions were to be used more widely
and on a pan-European basis; for instance, in relation
to the infringements of EU trademark.
11
The standards derived from Article 47 and those
deduced while balancing substantive rights are to
a large extent complementary. Some conditions,
for instance, the effectiveness of an injunction, can
only be assessed under the proportionality test.
Some other guarantees, such as the right to apply
for a review of a measure, can be deduced from both
standards – since it can be viewed as affecting both
the procedural position of third parties and their
substantive rights. However, insofar as procedural
safeguards are concerned, Article 47 constitutes a
more natural and stronger framework of reference.
D. Limitations upon injunctions
derived from Article
47 of the Charter
12
The right to effective judicial protection is not
absolute. Numerous procedural provisions, such as
time limits or application fees, can be regarded as
limitations of that right.24 Similar considerations
come into play with regard to injunctive relief.25 In
this regard, the judicial procedure leading to the
adoption of website blocking injunctions has several
particularities. First, the adoption of a blocking
injunction cannot be agreed between the parties
and requires the involvement of the court. Secondly,
the defendants – typically large ISPs – are neither
directly nor indirectly liable for the copyright
infringement. The application is made against them
merely because they are in a position to enforce the
injunction. In most situations the ISPs may not have
an interest in opposing the order. In this respect the
procedure is not in reality inter partes. Secondly, the
blocking injunction affects at least two categories of
third parties – internet users and internet services
providers – who cannot intervene in the proceedings,
24 See, for instance, judgment in Fastweb (C-19/13,
EU:C:2014:2194, paras 57–58).
25 See, for instance, with regard to asset freezing injunction,
judgment in Meroni (C-559/14, EU:C:2016:349).
at least, not initially. Due to those special features,
the procedure leading to the blocking injunctions
requires specic safeguards, which can be divided
into three categories concerning: (i) the role of the
court; (ii) the position of the defendant ISPs; and (iii)
the position of the affected third parties.
13
All those aspects potentially connect to various
elements within the bundle of rights guaranteed
under Article 47 of the Charter. The principle of
effective judicial protection comprises various
elements; in particular, the rights of the defence,
the principle of equality of arms, the right of access
to a tribunal, and the right to be advised, defended
and represented.26 It is applicable in disputes
between individuals and public bodies, as well as
the horizontal disputes between individuals.27 This
principle encompasses appropriate, and in principle
full, standard of judicial review
28
and may require the
court to raise certain legal issues on its own motion.
29
The fair trial rights under Article 47 guarantee an
individual’s right to “effective participation” in the
proceedings, which also implies that each party must
be afforded a reasonable opportunity to present its
case.30 They also protect the procedural position of
the defendant and, potentially, of the affected third
parties.31 The procedural safeguards stemming
from the right to a fair hearing largely depend on
the nature of the case. However, Article 47 of the
32
imposes a certain minimum standard of fairness –
in essence, the right to proper participation in the
proceedings – which may be breached if a party to
the proceedings, either the plaintiff or the defendant,
is put in a position of procedural inequality or is not
afforded adequate opportunity to present their case.
I. The role of the court
14
Balancing is inherent in the exercise of judicial
function. In doubtful cases, judges must strike a
balance between competing interconnected legal
26 See judgment in Otis and Others, C-199/11, EU:C:2012:684,
paragraph 48.
27 See H. Hofmann, Article 47 – Right to an Effective Remedy
[in] S. Peers, T. Hervey, J. Kenner, A. Ward, The EU Charter
of Fundamental Rights. A Commentary, Hart 2014, at 47.72.
28 See judgments in Kadi II (C-584/10 P, C-593/10 P and
C-595/10 P, EU:C:2013:518, paras 97-100) and KME and
Others/Commission (C-272/09 P, EU:C:2011:810, paras 102-
103).
30 See D. Sayers, Article 47 – Right to an Effective Remedy [in]
S. Peers, T. Hervey, J. Kenner, A. Ward, The EU Charter , op.
cit., at 47.203-47.206.
31 See fn 23 supra.
32 See O. Settem, Applications of the ‘Fair Hearing’ Norm in
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Saulius Lukas Kalėda
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interests. Balancing of interests is also an explicit
statutory requirement in relation to injunctive
relief. In contrast to the application of clear-cut
rules, balancing implies wide discretion in weighing
the competing factors and, thus, requires the
involvement of an independent and impartial body.
In the area of fundamental rights, this task should
in principle be reserved for a judicial body. The
adoption of injunctions, insofar as it requires to strike
a fair balance between the fundamental rights, is
therefore primarily a task for the courts.33 Additional
argument for mandatory judicial involvement in
the adoption of internet related injunctions could
be deduced from the EU net neutrality legislation
designed to safeguard open internet access. Under
the Net Neutrality (Open Internet) Regulation,
blocking of specic content by ISPs is prohibited
subject to the exhaustive list of exceptions, which
include measures necessary to comply with “orders
by courts or public authorities vested with relevant
powers”.34
15
Similar considerations determine the relevant
standard of judicial review. When deciding on an
injunction, the court cannot accept the application
even if it appears to have been agreed upon between
the parties, but must carry out its own independent
assessment in order to ensure an equilibrium
between the competing fundamental rights.
Moreover, the judicial order should be sufciently
specic in describing the measures ensuing from
this balancing exercise, in order to ensure that the
established equilibrium will not be compromised at
the stage of the implementation.35
16
It may be asked whether those requirements
could also be satised if injunctions were adopted
by an independent administrative body or would
result from out-of-court settlement, subject to
ex-post judicial review. Concerning the rst
alternative, although blocking could be ordered
by an administrative body in the context of public
enforcement, the same does not seem appropriate in
the context of private enforcement, which involves
determination of rights in a dispute between private
parties. As regards to the second alternative, the
availability of ex-post judicial review could run
counter to the principle that the balance between
the competing rights must be determined at the time
of the adoption of the injunction. Otherwise, the
issue of fundamental rights would only be examined
33 See opinions of AG Cruz Villalón in UPC Telekabel Wien
(C-314/12, EU:C:2013:781, points 87 to 90) and of AG Szpunar
in Mc Fadden (C-484/14, EU:C:2016:170, point 119).
34 See Article 3(3) and recital 11 of Regulation 2015/2120.
35 See opinion of AG Szpunar in Mc Fadden (C-484/14,
EU:C:2016:170, point 119). Injunction formulated in general
terms could be appropriate in some situations, see judgment
in UPC Telekabel Wien (C-314/12, EU:C:2014:192, paragraph
52).
at the stage of implementation of the injunction.36
17
It may therefore be argued that Article 47 of the
Charter entails the requirement that blocking
injunctions must be adopted by a judicial body.
As a consequence, ISPs can neither voluntarily
implement a blocking measure, nor agree to it in an
out-of-court settlement. The same considerations
should in principle apply to the extension of blocking
measures.37
II. The position of defendant ISPs
1. ISPs as nominal defendants
18
In the context of blocking injunctions, the defendant
ISPs are in a very unusual procedural position. They
are “innocent intermediaries”38 charged with the
task of implementing the injunction. Their liability
is not invoked and, at all events, they are shielded
by the safe harbour applicable to mere conduit
intermediaries under Article 12 of the E-Commerce
Directive. Their connection to the legal dispute
between the rightholder and the infringer is
therefore not a matter of substance, but merely a
matter of legal technique. The anomalous ‘nominal
defendant’ position of the ISPs potentially leads
to a procedural disadvantage, and might have to
be readjusted in order to ensure the principle of
equality of arms.
19
Equality of arms is a crucial element in the concept of
a fair trial enshrined in Article 47 of the Charter. This
principle requires that each party to the procedure is
afforded a reasonable opportunity to present its case
under conditions that do not place it at a substantial
disadvantage vis-à-vis the opponent. The aim of
equality of arms is to ensure a balanced position
between the parties to proceedings39 (reecting the
French legal concept of “équilibre des droits des
parties”).
40
A procedural arrangement which puts
36 See opinion of AG Cruz Villalón in UPC Telekabel Wien
(C-314/12, EU:C:2013:781, point 88).
37 The orders in Cartier incorporate a “sunset clause” such
that the orders will cease to have effect at the end of a
dened period “unless the ISPs consent to the orders being
continued”, see Cartier v BSkyB [2014] EWHC 3354 (Ch)
[265].
38 The term borrowed from P. Husovec – see M. Husovec,
Injunctions against innocent third parties: the case of
website blocking, JIPITEC 4 (2012), p.116.
39 See judgments in Otis and Others (C-199/11, EU:C:2012:684,
paras 71-72) and Sánchez Morcillo and Abril García (C-
169/14, EU:C:2014:2099, para 49). The wording is borrowed
from the Strasbourg case law, see ECtHR, De Haes and Gijsels
v Belgium (19983/92).
40 See J.-P. Dintilhac, L’égalité des armes dans les enceinte
judiciaires, Cour de cassation, Rapport 37 (2003).
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one party – either applicant or defendant – at a
substantial disadvantage constitutes a limitation to
the rights guaranteed by Article 47 of the Charter.
This consideration is relevant with regard to several
aspects of blocking injunctions.
2. Liability for over-blocking
20
The rst such tricky aspect concerns the lack of
legal certainty with regard to the liability for over-
blocking. Article 12 of the E-Commerce Directive
limits the general liability of the ISPs, but only in
relation to the infringements committed through the
information transmitted in a network. The ISPs are
not protected from the liability for over-blocking.
Should the implementation of an injunction lead
to over-blocking, the ISPs may be held liable with
regard to Internet users. This lack of protection
potentially undermines their neutral procedural
position in the injunctive proceedings. Instead of
accepting the order or adopting a neutral stance, the
ISPs might be forced to oppose it on the grounds of
their uncertain liability towards third parties. This
might put the defendant ISPs in a disadvantageous
position, since they would be required to oppose
the order, without necessarily having access to
the relevant information concerning the material
infringement.
21
In his opinion in UPS Telekabel Wien, AG Cruz
Villalón described similar concerns as the “ISP’s
dilemma”.41 He observed that if, in the interest of its
customers’ freedom of information, the ISP decides
on a mild blocking measure, it must fear a coercive
penalty. If it decides on a more severe blocking
measure, it must fear a dispute with its customers.
Since the ISP has no connection with the infringer
and has itself not infringed the copyright – in other
words, has no material connection to the dispute
– the measure which forces it into such a dubious
procedural situation cannot be said to strike a fair
balance between the rights of the parties. In order
to eliminate the ISP’s dilemma, the injunctive order
should dene precisely what measures they are
required to implement.
22
The same procedural disadvantage can be considered
from the perspective of the principle of equality
of arms, which entails a requirement that each
party be given the possibility to present its case in
the conditions that will not put it in a substantial
disadvantage. In the context of application of Article
47 of the Charter to the administrative proceedings,
the Court has held that in a situation where the
defendant bears a procedural burden of proving a
41 See opinion of AG Cruz Villalón in UPC Telekabel Wien (C-
314/12, EU:C:2013:781, point 89).
circumstance, and does not have access to relevant
evidence, the court is required to use all procedures
available, such as measures of inquiry, in order to
safeguard the effective protection of its rights.42 In
the context of blocking injunctions, it may be argued
that Article 47 of the Charter requires that the court
take active measures in order to address the issue of
liability for over-blocking. In particular, the court
should dene precisely the measures that have to be
implemented by the ISP, in order to preserve their
neutral procedural position in the proceedings.
3. Costs of litigation
23
The second aspect specic to the position of the ISPs
relates to the repartition of costs in the injunctive
proceedings.
24
The bundle of rights under Article 47 of the
Charter includes a guarantee against excessively
onerous costs for the participants of the judicial
proceedings.43 According to the case law of the Court
of Justice – inspired by the long standing case law of
the Strasbourg court – the requirement to pay court
fees in civil proceedings is not in itself regarded as
an incompatible restriction on the right of access to
a court, but the amount of the court fees constitutes
a material factor in determining whether or not a
person enjoyed her right of access to a court.44
25
This guarantee primarily concerns nancial
restrictions on the access to a court, and therefore
applies to the fees of application. However, it also
reects a wider principle, according to which
individuals should not be prevented from seeking
judicial protection merely by reason of the
resulting nancial burden. This principle comes
into play, for instance, where a national court is
called upon to make an order for costs against an
unsuccessful party. The requirement that judicial
proceedings should not be prohibitively expensive
means that the persons should not be prevented
from defending their rights before the court by
reason of the nancial burden that might arise as a
result. This might include the capping of the costs
for which the unsuccessful party may be liable.45
42 The Court actually refers to the principle of effectiveness
which is the corollary of Article 47. See judgment in
Unitrading (C-437/13, EU:C:2014:2318, para 28).
43 See judgments in Orizzonte Salute (C-61/14, EU:C:2015:655,
paras 72-79) and Toma (C-205/15, EU:C:2016:499, para 44).
44 See, for instance, ECtHR, Stankov v. Bulgaria (68490/01,
para 52).
45 See, in the context of access to justice in environmental
matters, judgment in Edwards (C-260/11, EU:C:2013:221,
para 35).
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26
Although these principles have been developed
in relation to claimant’s rights, there is no reason
why they should not apply to the other party,
defending its rights in the injunctive proceedings.
This observation may apply to the ISPs facing the
blocking injunction, since they are drawn into the
proceedings due to a mere legal technicality and
do not have any material interest in opposing the
application. It may be argued that due to their
position as nominal defendants, the ISPs should not
bear the costs of proceedings. Since Article 47 of the
Charter extends to pre-litigation procedures,46 this
observation also applies to any pre-litigation costs.
In other words, if defendants are required to bear
costs automatically, simply because of the exercise
of the right to make submissions to the court, their
right to a fair trial guaranteed by Article 47 might
be compromised.
27
This touches upon a contentious issue. In the
literature, it was observed that it would be
disproportionate to require the ISPs to bear the
applicant’s costs.47 However, in McFadden, the
Court claried that “taken in isolation” safe
harbour under Article 12 of E-Commerce Directive
does not shield the ISPs from the costs ordered
in the injunctive proceedings.
48
It might be asked
whether that guarantee would be different if
Article 12 is applied in conjunction with the right
to a fair trial. The repartition of costs in the context
of blocking injunctions has also been considered
by the UK courts. It appears now settled that the
defendant ISPs – due to their unusual procedural
position – do not have to bear the costs of an
unopposed application.49 This is however subject
to the condition that the ISPs have consented to
the order or at least have adopted a neutral stance.
That reservation seems questionable, since it
appears to penalise the defendants for pursuing
their rights. Moreover, if the ISPs regularly decide
not to oppose the application merely due the risk
of costs liability, this might distort the application
of the principle of proportionality. An undisputed
application is more likely to be considered
by the court as prima facie proportionate.50
46 See judgment in Alassini (C-317/08 to C-320/08,
EU:C:2010:146, paras 55 and 57).
47 See Savola, Proportionality of Website Blocking, op. cit.,
p. 127; and G. Spindler, Sperrverfügungen gegen Access-
Provider – Klarheit aus Karlsruhe?, GRUR 2016, p. 459.
48 See para 78 of the judgment in McFadden (C-484/14,
EU:C:2016:689).
49 See Cartier [2014] EWHC 3354 (Ch) [240].
50 See J. Riordan, The Liability of Internet Intermediaries,
op. cit., at 14.116.
III. The position of third parties
1. The fair trial guarantees for third parties
28
The guarantees stemming from the rights of the
defence under Article 47 of the Charter, encompass
the position of third persons whose rights may be
affected by the judicial order. In several cases related
to the mutual recognition of judicial decisions, the
Court has claried that the order adopted without
a prior hearing of a third person whose rights may
be affected is not manifestly contrary to the right to
a fair trial guaranteed by Article 47 of the Charter,
insofar as that third person is entitled to assert his
rights before the court at a later stage.
29
In Gambazzi, in the context of a series of judicial
decisions adopted without the defendant being
present, the Court considered what legal remedies
were available to the defendant in order to request
the amendment or revocation of the provisionally
adopted measures; namely, whether he had the
opportunity to raise all the factual and legal issues,
whether those issues were examined as to the merits
in full accordance with the adversarial principle,
and whether he could avail himself of procedural
guarantees which gave him a genuine possibility of
challenging the nally adopted measure.
51
In Meroni,
the Court examined whether an asset freezing
injunction issued without a prior hearing of all third
persons whose rights may be affected ought to be
regarded as manifestly contrary to the right to a fair
trial in the light of Article 47 of the Charter. the Court
observed that the contested order had no legal effect
on a third person until he has received notice of it
and that it was for the applicants seeking to enforce
the order to ensure that the third persons concerned
were duly notied of the order. Furthermore, once a
third person not party to the proceedings has been
notied of the order, he was entitled to challenge
that order and request that it be varied or set aside.
52
30 The principles established by the Court in relation
to the fair trial rights of third affected parties
are relevant to the discussion on the procedural
safeguards in injunctive proceedings. The blocking
injunctions affect a number of third parties who
are not represented in the proceedings. This
category comprises both internet users (customers
of the defendant ISPs) and services providers –
the operators of affected websites, including any
websites that may be collaterally affected (for
instance, those sharing the same IP address as the
targeted site). The same also applies to the alleged
infringers who, in relation to injunctive proceedings,
51 See judgment in Gambazzi (C-394/07, EU:C:2009:219, paras
41-44).
52 See judgment in Meroni (C-559/14, EU:C:2016:349, para 49).
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are in a similar position as third parties.
31
It is also relevant that the breach of procedural
safeguards stemming from Article 47 of the Charter
may constitute the manifest breach of an essential
rule of law in the EU legal order, and therefore
grounds for refusal of recognition of judicial decision
in another Member State on the grounds of the
public policy clause.
53
In order to be effective, the
Internet related injunctions in the context of the
IP enforcement, might have to be applied on an
EU-wide basis. This would be even more important
if such injunctions were used in relation to an EU
trademark. Such wider application can only be
achieved – from the point of view of public order
– if procedural standards stemming from Article 47
of the Charter are clearly dened and applied in a
uniform manner in the EU.
32
From the point of view of the guarantees inherent in
Article 47 of the Charter, the court must ensure that
the affected parties are informed of the order and
can effectively assert their rights by asking the court
to vary or set aside the measure. In other words,
those safeguards should ensure transparency and
efcient ex-post review.
2. Transparency
33
Since the affected third parties may not be aware
of the application for injunctions, it is essential
that they receive a notice with appropriate
information individually or, at least, through a
general publication. This notice should enable them
to ascertain the reason for the blocking (instead of
returning error message), identify the applicant
who obtained the order, and also inform them of the
review procedure.54 The relevant safeguards have
been examined by Justice Arnold in Cartier, who held
that the Internet page containing the information
should not merely state that access to the website
has been blocked by court order, but also identify
the party or parties which obtained the order and
indicate that the affected users have the right to
ask the court to discharge or vary the order.55 The
requirement of transparency in this context informs
third parties about the existence of restriction which
is, quite evidently, a pre-condition for the exercise of
the substantive fundamental rights by the affected
internet users and services providers. It is therefore
closely related to the existence of an effective review
53 See, in relation to Article 34(1) of Regulation No 44/2001,
judgments in Diageo Brands (C-681/13, EU:C:2015:471, para
50) and Meroni (C-559/14, EU:C:2016:349, para 46).
54 See, for instance, J. Riordan, The Liability of Internet
Intermediaries, op. cit., at 13.219-13.223 and 14.127.
55 See Cartier v BSkyB [2014] EWHC 3354 (Ch) [264] and FAPL v
BT [2017] EWHC 480 Ch. [53].
mechanism.
34 This requirement has already been incorporated in
the blocking orders related to public enforcement56
and is also reected in the Council of Europe’s
recommendations on the use of internet lters.57
3. Effective review mechanism
35
The internet users and services providers whose
rights are affected should have access to effective
judicial remedy enabling them to challenge the
blocking measure. This guarantee stems directly
from the right to a court under Article 47 of the
Charter, and is also closely linked to the general
guarantees protecting the freedom of expression
and the right to information.
58
It has already been
introduced in the context of public blocking orders.
59
36
An argument was raised in the literature that affected
third parties should be given an opportunity to state
their views, even before the decision is made.60 This
does not seem practically feasible – although in
Cartier, Justice Arnold observed that, in theory, it
would have been open to subscribers to the ISPs to
apply to intervene in the case.61
37
In relation to the ex-post review mechanism, in UPC
Telekabel Wien, the Court of Justice held that the
national procedural rules must provide a possibility
for internet users to assert their rights before
the court, even ex-post, once the implementing
measures are taken.62 A similar requirement to
ensure the existence of an effective ex-post review
mechanism against trafc management measures
56 In the context of measures combatting child pornography,
pursuant to Article 25(2) of Directive 2011/93 “[website
blocking] measures must be set by transparent procedures
and provide adequate safeguards, in particular to ensure
that the restriction is limited to what is necessary and
proportionate, and that users are informed of the reason
for the restriction”.
57 Council of Europe’s recommendation CM/Rec(2008)6,
Guideline I states ; “when confronted with lters, users must
be informed that a lter is active and, where appropriate,
be able to identify and to control the level of ltering the
content they access is subject to”.
58 See ECtHR, Yıldırım v. Turkey (3111/10, para 37).
59 Pursuant to Article 25(2) of Directive 2011/93, the
mandatory safeguards in the context of blocking measures
must include the “possibility of judicial redress”. According
to Recommendation CM/Rec(2008)6, Guideline I, “[Internet
users] should have the possibility to challenge the blocking
or ltering of content and to seek clarications and
remedies”.
60 See A. Marshoof, The blocking injunction, op. cit., p. 645.
61 See Cartier v BSkyB [2014] EWHC 3354 (Ch) [263].
62 Judgment in UPC Telekabel Wien (C-314/12, EU:C:2014:192,
para 57).
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adopted by ISPs is reected in the EU net neutrality
rules.63 In Cartier, Justice Arnold considered whether
the injunctive order incorporates safeguards against
abuse. First, those safeguards permitted the ISPs to
apply to the court to discharge or vary the orders in
the event of any material change of circumstances,
including in respect of the costs, consequences
for the parties, and effectiveness of the blocking
measures. Secondly, they permitted the operators of
the target websites to apply to the court to discharge
or vary the orders. Thirdly, since it was debatable
whether affected users could apply to discharge or
vary the order under English procedural law, Justice
Arnold held that orders should expressly permit
affected subscribers to apply for such a remedy.64
In FAPL, the order required a notice to be sent to
each targeted hosting provider when one of its IP
addresses was subject to blocking, and the operators
were given permission to apply to set aside or vary
the order, in the same way as the affected internet
users and the operators of the target servers.65
38
It is debatable to what extent those EU legal
provisions require an introduction of new national
remedies. In Goldesel, the German BGH observed that
the existing remedies are sufcient, since internet
users can assert their rights against access providers
on the basis of their contract with the ISP.
66
However,
it is highly disputable whether such contractual,
private law remedy would be sufcient in order to
ensure effective review. Such a remedy is clearly
insufcient with regard to collaterally affected
website operators, who do not have contractual
relations with the ISP67.
39 Moreover, the adoption of new remedies might be
necessary with regard to new, unorthodox types of
injunctive orders, such as “live blocking orders”.
The review mechanism must ensure an effective
and timely review. In view of this requirement, the
injunctive order might have to envisage a special
review mechanism with regard to the live blocking
orders, which are directed at the websites that
stream live content to consumers. Such orders
may be adopted for a very limited period of time
coinciding with the duration of the live event68
and, therefore, any review arrangement must be
63 According to recital 13 of Regulation 2015/2120, any
measures liable to restrict fundamental rights must be
subject to adequate procedural safeguards, including
effective judicial protection and due process.
64 See Cartier v BSkyB [2014] EWHC 3354 (Ch) [262]-[265].
65 See FAPL v BT [2017] EWHC 480 Ch. [27].
66 See BGH I ZR 174/14 – Goldesel [57].
67 See criticism of the approach adopted by the BGH to third
party procedural rights, G. Spindler, Sperrverfügungen
gegen Access-Provider, op. cit., p. 457.
68 See FAPL v BT [2017] EWHC 480 Ch. The order came into
force on 18 March 2017 and only endured until 22 May 2017,
which was the end of the 2016/2017 Premier League season.
extremely expedient.
4. Right to privacy and data protection
40
It is arguable whether the blocking of content
available on the Internet requires to take into
account the right to privacy of internet users.
Thus, the BGH ruled, contrary to the opinion of the
appellate court, that communications addressed to
the general public do not fall within the sphere of
privacy and, furthermore, the mere prevention of
communication over the internet does not interfere
with the right to privacy.69
41
Regardless of this wider debate, it seems evident that
the implementation of an injunction may necessitate
the adoption of adequate safeguards in relation to
the right to the protection of personal data. Under
the EU net neutrality rules (Article 3(4) of Regulation
2015/2120), any trafc management measure may
entail processing of personal data only if such
processing is necessary and proportionate to achieve
the objectives set out in the permissible limitations
(and, of course, must be carried out in accordance
with the legislation on data protection). In the case
of blocking measures, processing of personal data
must be limited to what is necessary in order to
comply with the court order.
42
The adequate safeguards are necessary to ensure
that the knowledge obtained by the ISPs with regard
to the circumstances of (blocked) communication
does not interfere with internet users’ right to
privacy. Such knowledge must be obtained in an
automated way, limited to what is necessary to
block communication, recorded anonymously,
using purely technical means, and deleted without
a trace immediately after blocking a user’s access.70
Additional safeguards might be necessary if an
injunction involves an update procedure and entails
a regularly adapted list of target websites.
43
It may observed that any measures limiting the right
to data protection must be provided by legislation,
which should lay down clear and precise rules
governing the scope and application of the measure
in question and imposing minimum safeguards
against the risk of abuse.
71
It is debatable to what
extent those requirements could be satised by a
mechanism dened by a court’s injunction. This
aspect relates however to substantive fundamental
69 See BGH I ZR 174/14 – Goldesel [60]-[70]; and M. Schaefer,
ISP liability for blocking access, op. cit., p. 635.
70 See BGH I ZR 174/14 – Goldesel [68]; and M. Schaefer, ISP
liability for blocking access, op. cit., p. 635.
71 See judgment in Digital Rights Ireland and Others (C-293/12
and C-594/12, EU:C:2014:238, paras 53-54).
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rights issues and is beyond the framework of the
present analysis.
E. Conclusion
44
Website blocking is an invasive enforcement tool,
which requires the adoption of rigorous procedural
safeguards, particularly when it is used in the
context of private enforcement. The conditions
for injunctions have not been harmonised in EU
law and remain subject to autonomous application
of national law. They must nevertheless comply
with the fundamental rights guaranteed by the EU
Charter. The existing case law of the EU Court of
Justice and the national courts puts the emphasis
on substantive limitations on injunctions, stemming
from the requirement to strike a fair balance
between the fundamental rights of the rightholders
and internet users. The particular nature of blocking
injunctions justies putting a stronger emphasis on
procedural, rather than substantive safeguards.
Procedural safeguards stemming from Article 47 of
the Charter could constitute a minimum standard,
which could be invoked in order to achieve a certain
degree of uniformity across Member States. Since
breach of Article 47 of the Charter constitutes a
ground for refusal of recognition of judicial decision
in another Member State, such a shift of approach
– from substantive to procedural rights – might be
particularly important if the rightholders sought to
enforce internet related injunctions on an EU-wide
basis.
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