The Austrian Supreme Court has sent a request to the European Court of Justice to clarify whether an ISP providing Internet access to those using an alleged illegal website was to be considered as an intermediary. It also asked for an interpretation of the EU rules on the content and procedure for the issuing of such an injunction.
The request comes in relation to a case initiated by Constantin Film against the Austrian ISP UPC with the purpose to prohibit UPC from allowing its customers to access a streaming site kino.to.
The complainants argued that the ISP was providing access to its subscribers to Kino.to, thus enabling the users to access their copyrighted material without permission.
In his legal advice to the European Court of Justice, Advocate General Pedro Cruz Villalón stated that Internet service providers may be ordered to block their customers from accessing known copyright infringing sites, according to that EU law. In his opinion, the ISP of the user of a website infringing copyright is also to be regarded as an intermediary whose services are used by a third party – that is the operator of the website – to infringe copyright and therefore also as a person against whom an injunction can be granted. In his opinion, that is apparent from the wording, context, spirit and purpose of the provision of EU law.
Although he believes that “it is incompatible with the weighing of the fundamental rights of the parties [freedom of information, freedom to do business, copyright protection] to prohibit an internet service provider generally and without ordering specific measures from allowing its customers to access a particular website that infringes copyright “, he however adds that “a specific blocking measure imposed on a provider relating to a specific website is not, in principle, disproportionate only because it entails not inconsiderable costs but can easily be circumvented without any special technical knowledge.”
While he emphasizes that rightholders must, as much as possible, claim directly against the operators of the illegal website or their providers, he also warns that, when weighing the fundamental rights, it must be taken into account that, in future, action could be taken in numerous similar cases against any provider before the national courts: “It is for the national courts, in the particular case, taking into account all relevant circumstances, to weigh the fundamental rights of the parties against each other and thus strike a fair balance between those fundamental rights.”
The Advocate General’s advice is not binding for the court, which will also rule on the case.
Court of Justice of the European Union PRESS RELEASE- Advocate General’s Opinion in Case C-314/12 (26.11.2013)
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