By Joe McNamee

Following the European Court of Justice ruling on the UPC Telekabel v Constantin in April 2014, Austrian internet access providers have started “blocking” several websites. In the case in question, the Court established that an injunction may be imposed on an internet access provider (ISP) “prohibiting an internet service provider from allowing” its customers access to a website “when that injunction does not specify the measures which that access provider must take”.

The Court made its ruling on the basis of EU legislation from 2001. Faced with the impossible task of implementing legislation which is wildly out of date, the Court tried to cobble together a solution.

The 2001 Copyright in the Information Society Directive establishes that injunctions must be possible against intermediaries whose services are being used by a third party to infringe copyright or a related right (Article 8.3 of Directive 2001/29/EC). However, since that Directive was adopted, the Court has developed a substantial body of case law determining that laws imposing excessive filtering or monitoring are in breach of the European Charter of Fundamental Rights. So, as the European legislator has abdicated responsibility for this issue for the past 13 years, how was the Court going to implement a law that is no longer fit for purpose?

As the Court understands that it is not actually possible for an Internet Service Provider not “to allow” a customer to access a particular website, a different solution had to be found. The solution was a non-specific injunction. The European Court ruled that national courts can simply ask internet access providers to… well, do things,.. “reasonable” things… to make it difficult… or difficult enough… to stop its customers for accessing specific online resources. The access provider can then “avoid incurring coercive penalties for breach of that injunction” by showing that it has taken all reasonable measures”.

To “avoid incurring coercive penalties for breaches of that injunction, by showing that it has taken all reasonable measures”, the ISP must guess what measures are good enough to satisfy a court in the future and then impose these measures.

But what about if the internet access provider takes measures that are excessive? What about if the measures infringe its customers’ fundamental rights to privacy and freedom of communication? Well, the European Court ruled that the measures imposed by the internet access provider are only permissible if they “do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available”.

This, then, leaves just one question – what happens if the Internet Service Provider changes its terms of service in a way that does unnecessarily deprive internet users of the possibility of lawfully accessing the information available? Who is at fault?

Well, the access provider is not subject to the Charter of Fundamental Rights and so is not clearly breaking the law – although if someone has the financial means to do so takes a case, if a clear causality between the injunction and the restrictive measure can be drawn and if the national court agrees that the ISP’s enforcement measures are indeed disproportionate, then it is possible that a national court may eventually rule that the measure is excessive and demand that it be brought to an end. If there was no specific national law prohibiting the measure imposed by the ISP, it could not, obviously be held liable for breaking a law that did not exist, however.

The national court is imposing an injunction which is explicitly permitted by the European Court, so it is clearly acting within the law. The European Court of Justice is the EU’s highest court and therefore the options for appeal are very limited. In other words, the citizen has rights, the rights would be infringed and somehow, nobody would be liable for this.

Consequently, that just leaves the Member States and European Commission – are they at fault for not establishing clear limits as to what sort of enforcement mechanisms may be imposed by intermediaries that are asked to balance enforcement rights with citizens’ rights? Well, the Italian presidency of the EU seems to think so. In a recent paper on the Google/Spain case, it stated that “…some delegations have referred to the risk that the freedom of expression, and the interest of the public at large to have access to information may end up being “underweighted” in the balancing process by the controller in particular where the latter is a search engine.”

In sum, the Member States are clear. Yes, there is currently a gap in European law because, in such an exercise, the citizens’ rights are “underweighted”. An upcoming “Council Conclusions” document is now set to confirm that the Council of the European Union doesn’t care – promoting rather than restricting the role of intermediaries in “balancing” rights and obligations in the digital environment. Will the new Commission care, when it takes office in November? Time will tell.

Italian Council document (29.09.2014)
http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2013619%202014%20INIT

European Court ruling: 2001 Copyright in the Information Society Directive
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:167:0010:0019:EN:PDF

UPC Telekabel v Constantin case (27.03.2014)
http://curia.europa.eu/juris/document/document.jsf?text=&docid=149924&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=103318

Provider must block pirate sites (only in German, 03.10.2014)
http://derstandard.at/2000006347840/Provider-muessen-unverzueglich-Piratenseiten-kinoxto-und-movie4-sperren

Austrian provider blocks streaming portals (only in German, 06.10.2014)
http://www.heise.de/newsticker/meldung/Oesterreichische-Provider-sperren-Streaming-Portale-2412254.html

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