EU Court Of Justice Makes Life Difficult For ISPs: Demand 'Balance' In Blocking Websites, But Incomplete Blocking May Lead To Liability

from the figure-that-one-out dept

While in the past, the EU Court of Justice has been more concerned about attempts to order ISPs to block access to entire websites over claims of infringement, late last year, we noted that the EUCJ's Advocate General Pedro Cruz Villalon had suggested that it was okay to issue an injunction against an ISP -- with some specific restrictions to try to limit the serious issue of overblocking. While the court will often follow the lead of the Advocate General, and the newly issued ruling does appear to reach the same final conclusions, it appears to have done so slightly different reasoning.

Either way, the key part is this:

The fundamental rights recognised by EU law must be interpreted as not precluding a court injunction prohibiting an internet service provider from allowing its customers access to a website placing protected subject-matter online without the agreement of the rightholders when that injunction does not specify the measures which that access provider must take and when that access provider can avoid incurring coercive penalties for breach of that injunction by showing that it has taken all reasonable measures, provided that (i) the measures taken do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available and (ii) that those measures have the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging internet users who are using the services of the addressee of that injunction from accessing the subject-matter that has been made available to them in breach of the intellectual property right, that being a matter for the national authorities and courts to establish.

In other words, it appears that broader injunctions, which do not specify exactly what an ISP must do to block access, are allowed. However, ISPs themselves will then be responsible for "taking all reasonable measures" to block access, as long as those measures don't block lawful content. That seems like kind of a huge mess for ISPs who will now have to deal with injunctions asking them to block stuff, where they'll be required to show "reasonable measures" but will also need to balance that against blocking access to legitimate content. This decision seems to try to thread a needle, where the result is likely to be many new lawsuits as censorship injunctions are issued, and ISPs have to figure out how to balance the order without blocking access to legitimate content. It seems likely that many ISPs will opt for limiting their own liability by defaulting towards overblocking to avoid having to face challenges suggesting they didn't take enough "reasonable measures."

Filed Under: balance, blocking access, eu court of justice, injunctions, isps, liability