Internet Service Providers (ISPs) can be ordered to block customers’ internet access. In a decision that has been applauded by rights holders, the European Court of Justice (ECJ), has recently ended a period of uncertainty as to the respective rights of ISPs to conduct their business without interference, and rights holders (usually in the music and other creative industries) to protect their copyright. The uncertainty was resolved in favour of rights holders and represents the culmination of a recent line of national cases in which the pendulum has swung in their favour, with judges sanctioning their attempts to block access to pirate sites which infringe their rights.
The case was referred to the ECJ by the Austrian Supreme Court which was hearing a case between ISP UPC Telekabel Wien and film companies Constantin Film Verleih and Wega-Filmproductionsgesellschaft. The two film companies wanted the court to order the ISP to block access to a streaming website that infringed their copyrights. The ISP argued that it should be compelled to block access as it had no business relationship with the infringing site and, further, that it had not been established that its own customers had acted unlawfully.
The ECJ dismissed these arguments and ruled that despite there being no business relationship between the ISP and the infringing site, the ISP was still an “intermediary” whose services had been used to infringe copyright and therefore was a person against whom an injunction could be granted under the Copyright Directive.
Rights holders are understandably delighted by the ruling, whilst ISPs will be concerned as to how to balance the rights of their users to access information freely as against the rights of the copyright holders. Dismayed ISPs can draw some limited solace from a comment in the judgment that ISPs will not be required to make ‘unbearable sacrifices’ to achieve this balance.