The availability of legal content and the number of legitimate services online – as well as their use – is rising but copyright infringements online remain a hot topic. In addition to targeting for instance unauthorized file sharing services – like the Pirate Bay – directly, also other options to address this challenge have been actively pursued. In several European countries internet service providers (ISPs), have been ordered to block access to certain websites that are claimed to be used for making available copyrighted content without rights holders’ consent, as seen recently e.g. in Denmark where the ISP Hi3G Denmark ApS (teleselskabet 3) was on 20 February 2012 ordered to block www.grooveshark.com.
At the EU level, the European Court of Justice (ECJ) has recently in its rulings offered guidance on ISPs’ obligations. On 24 November 2011, the court held in Scarlet v SABAM (C-70/10) that “EU law precludes the imposition of an injunction by a national court which requires an internet service provider to install a filtering system with a view to preventing the illegal downloading of files”. Also in SABAM v. Netlog (C-360/10) the ECJ issued a ruling with similar effect concerning social networking websites. Based upon the wording of the ruling in Scarlet v SABAM it appears, however, that more restricted orders may be available against intermediaries. While the Article 15 of the E-commerce Directive (2000/31/EC) prohibits imposing a general obligation on ISPs to monitor the information transmitted by them, however, as stated in the recital 59 of the InfoSoc Directive (2001/29/EC), “rightholders should have the possibility of applying for an injunction against an intermediary who carries a third party’s infringement of a protected work or other subject-matter in a network. … even where the acts carried out by the intermediary are exempted under Article 5.” This, in turn, is covered under Article 11 of the Enforcement Directive (2004/48/EC).
In Finland, based upon IFPI Finland’s application, the Helsinki District Court issued on 26 October 2011 an injunction against the ISP Elisa (Elisa Press Release, 9 January 2012), ordering it to block its users’ access to the Pirate Bay; in essence, the court ordered Elisa to put in place DNS/IP blocking to prevent its users from accessing the website. The Finnish Copyright Act (Tekijänoikeuslaki, Act 404/1961), Section 60(c)(1), upon which the blocking order in the Elisa case was issued, provides that a court may issue an “injunction to discontinue” (keskeyttämismääräys) and order also an intermediary to discontinue “the making of the allegedly copyright-infringing material available to the public” where the requirements set out in the provision are fulfilled.
Elisa appealed the decision but the case is still pending in the Court of Appeals. In November 2011, IFPI Finland filed also similar applications against the ISPs TeliaSonera and DNA. These cases are still pending in the Helsinki District Court – likely waiting for the Court of Appeals’ ruling in the Elisa case. However, in light of the guidance from the ECJ and the currently applicable domestic and EU law, it seems likely that the Court of Appeals will uphold the blocking order.
Petteri Günther