On 27 March 2014, the European Court of Justice (CJEU) ruled that national jurisdiction can order an injunction against an Internet Service Provider (ISP) requiring it to restrict its customers from accessing a website that is placing protected content online without the consent of the rights holder.
Since last year, Austrian ISPs have thus started to comply with the ruling and block access to the streaming platform “kino.to”, which subsequently changed its domain to “kinox.to” and then again to “kinox.tv”. Four Austrian providers have continued to fight the details regarding the implementation of the decision before Austria’s supreme court (Oberster Gerichtshof, OGH) – without much success.
This week, Austrian online news platform “Futurezone” obtained a classified copy of the latest decision of the OGH. The document shows that the national supreme court decided to impose the costs of Austria’s blocking scheme on the operators – meaning that these will, in the end, be passed on to the customers. In the UK, where web blocking measures have been in place for several years, the costs of one judicial blocking decision are estimated at 6300 EUR. Ironically, Austrian citizens who have only ever used authorised websites will now have to pay for the blocking infrastructure which is being set up to prevent them from accessing allegedly infringing material.
The biggest problem however is the lack of sufficient control mechanisms. The Austrian legislator has so far refused to take responsibility for ensuring respect of fundamental rights by the ISPs when they choose the means by which they implement the injunctions, and no measures exist yet that would guarantee transparency, leading to a catastrophic lack of judicial and public oversight.
This also seems to be in contravention of the European Court of Justice’s clear and narrow guidelines, which state that every measure has to be “strictly targeted” and that it must “bring an end to a third party’s infringement of copyright […] but without thereby affecting internet users who are using the provider’s services in order to lawfully access information.” (recital 56).
In its ruling, the CJEU added that “national procedural rules must provide a possibility for internet users to assert their rights before the court once the implementing measures taken by the Internet Service Provider are known.”
It is not only the Austrian courts’ obligation to implement the CJEU’s decision. The Austrian government is now responsible for the creation of such “national procedural rules” – for the protection of internet users’ and all citizens’ rights and freedoms.
User will have to pay for web blocking (only in German, 04.03.2015)
OGH confirms web blocking for copyright infringements (only in German, 22.07.2014)
Anti-Piracy Association on Kino.to: “Digital Abbottabad” (only in German, 23.05.2011)
European Court of Justice, Fourth Chamber, jugdement of 27 March 2014
EDRi-gram: Web-blocking in Austria – law with the law taken out (22.10.2014)
(Contribution by Joachim Losehand, EDRi-member VIBE!AT, Austria)