UPC Telekabel—ISPs can be subject to non-specific site blocking orders

UPC Telekabel—ISPs can be subject to non-specific site blocking orders
UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and anor: C-314/12 [2014] All ER (D) 302 (Mar)

The CJEU considered whether injunctions issued against, for example, internet service providers (ISPs) requiring them to block access to copyright infringing websites must be specific as to the measures anaccess provider must take and also whether such injunctions are compatible with various EU Directives and fundamental rights.

[caption id="attachment_5881" align="alignnone" width="240"] ISPs-between a rock and hard place
Photo: Michael Sheehan - Flickr[/caption]

What was the factual background to this case?

A website made films available as downloads or for streaming on anunauthorised basis. Two film production companies sought anorder enjoining UPC Telekabel, anISP, to block the access of its customers to the website by blocking that site’s domain name and current IP address and any other IP address of that site of which UPC Telekabel might be aware.

Austria’s Supreme Court decided that:

  1. local laws must be interpreted in the light of Directive 2001/29/EC, art 8(3) (the InfoSoc Directive)
  2. by giving its customers access to content illegally placed online, UPC Telekabel had to be regarded as anintermediary whose services were used to infringe a right related to copyright—with the result that the film production companies were entitled to request that aninjunction be issued against UPC Telekabel
  3. as regards the protection of copyright—UPC Telekabel could only be required to forbid its customers access to the website at issue, but it had to remain free to decide the means to be used

UPC Telekabel’s submitted case was that its services could not be considered to be used to infringe a copyright or related right within the meaning of the InfoSoc Directive, art 8(3) because:

  1. it did not have any business relationship with the operators of the website at issue
  2. it was not established that its own customers acted unlawfully, and
  3. the various blocking measures which may be introduced can all be technically circumvented and some of them are excessively costly

The Austrian Supreme

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