According to the CJEU ruling handed down today in the case of UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft, internet service providers (“ISPs”) can be ordered to block access by customers to websites making available infringing content. Such blocking orders do not need to specify the measures that must be taken by the ISP however the injunction must ensure a fair balance between the fundamental rights concerned.
Constantin Film Verleih holds the rights to the films ‘Vicky the Viking’ and ‘Pandorum’ and Wega Filmproduktionsgesellschaft holds the rights to ‘The White Ribbon’. They took action in the Austrian courts to obtain an order against an Austrian ISP, Telekabel, to prohibit Telekabel from providing its customers with access to the website kino.to, which was making those films available for streaming and downloading. Telekabel argued that it did not have any relationship with the operators of kino.to and therefore its services could not be considered to be used to infringe copyright and that the various blocking measures are excessively costly and could be easily circumvented. As a result, the Austrian court stayed the proceedings and referred a number of questions to the CJEU.
The CJEU has ruled that an ISP is an intermediary whose services can be used to infringe copyright for the purposes of Article 8 of the InfoSoc Directive. It is not necessary for the intermediary to have a contractual relationship with the infringer (in this case kino.to). Secondly, a blocking order against an ISP does not need to specify the measures that need to be taken. An ISP can choose the measures best adapted to its resources and avoid liability for breach by showing it has taken all reasonable measures provided that the measures taken prevent unauthorised access to the copyright material (or at least seriously discourage users) but do not unnecessarily deprive users of the possibility of lawfully accessing information. In other words the measures must target the infringing works and not affect internet users who are lawfully using the ISPs services to access information, as this would be an unjustified interference with the users’ right to freedom of information.
The national courts must allow users to assert their right to freedom of information before the court once the implementing measures by the ISP are known.