Dutch Court finds Pirate Bay blocking disproportionate
In a new instalment of the Dutch saga of copyrightholders representative
BREIN demanding courts to order ISPs to block The Pirate Bay this mostly
worrisome string of court decisions takes a turn for the better: the The
Hague Court of Appeals has judged that previous blocking orders that had
been granted have been mostly ineffective and as such are a
disproportionate infringement on the entrepeneurial freedoms of the ISPs
affected.
We previously noted that there has been ample reason to ask the ECJ for
prejudicial decisions, but that nonetheless no such questions have been
raised. This decision still did not take this opportunity and also
stands out in another respect: the norm applied was not art. 10 European
Convention of Human Rights or art. 10 Charter of Fundamental Rights of
the European Union (CFREU) but art. 16 CFREU. In a way this is a
worrisome development, since it implies that the Court apparently feels
that blocking internet access for certain IP-ranges and domain names is
less a freedom of expression issue than a freedom to conduct a business
issue.
Nonetheless, we welcome the affirmation of the principle that
proportionality of a measure is also affected by its effectiveness and
that the court recognised that even if a measure as a low impact on a
business it must be justified by being effective.
The Court specifically noted that even though it accepted BREIN’s view
that overall popularity of The Pirate Bay among Dutch users had dropped,
total bittorrent traffic was unaffected by the blocking measures and
that the ultimate yardstick was the amount of infringement going on via
the Bittorrent protocol, not the extent to which that had been
facilitated by The Pirate Bay.
As such this saga is unlikely to be over, there is still room for BREIN
to appeal to the Dutch High Court, which as a court of last instance, is
obligated to ask the ECJ for its opinion if the matter at hand involves
clarification of EU legislation.
Also, this decision only affects XS4ALL and Ziggo as there have been
blocking orders for other smaller ISPs. The likelihood of these
surviving the appeals process has however diminished by this development.
Court decision (only in Dutch, 28.01.2014)
http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:GHDHA:2014:88
EDRi-gram: Dutch Internet providers forced to block The Pirate Bay
(18.01.2012)
https://edri.org/edrigramnumber10-1dutch-isps-block-piratebay/
ISPs No Longer Have to Block The Pirate Bay, Dutch Court Rules (28.01.2014)
http://torrentfreak.com/isps-no-longer-have-to-block-the-pirate-bay-dutch-court-rules-140128/
(Contribution by Walter van Holst – EDRi member Vrijschrift – Netherlands)