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.”

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

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That One Guy (profile) says:

I can see it now...

‘Man, we are going to catch some serious flack for ordering ISP’s to block all this stuff, and it’s going to take a massive amount of work to make sure we only order the right sites blocked, as if we just block a bunch at seeming random the public is going to throw a fit and blame us.’

‘Tell me about it, this is going to…’


‘I just had this brilliant idea. What if we shift all that to the ISP’s? Tell them to block seriously broad categories of stuff, make it so they’re legally liable if they ‘miss’ a site, and then say it’s their responsibility to only block the ‘right’ sites. Either they have to carefully block sites on an individual basis, or they take the legally safe route and block huge numbers of sites, and either way the idiot public will lay all the blame on them, not us.’

‘Perfect, they get the blame, we get the credit for ‘doing something’! Now, how else can we screw over the public while we’re on a roll…’

Ninja (profile) says:

The question is, why the fuck the ISPs have to block anything? If it’s truly illegal then it usually is illegal where the site is hosted (remember we are talking about blockades of criminal content such as drug selling, child porn and the likes) so why not reach the international police and the country hosting and going after the goddamn criminals? Besides, any moron know better that you don’t try to access such contents in the open internet preferring tor and .onion stuff (or similar). So, yeah, blockades are utterly useless.

Anonymous Coward says:

Maybe we'll get lucky

Fantasy time, but here’s hoping that the ISP’s of the world will overreact as hoped and block every bit of video on the web. Starting with movie trailers/commercials, major studio sites, television broadcasters, government how-to videos, product demos, CNN,, GoToMeetings, and such. After all, how are the ISP’s to know these *aren’t* infringing sites. Bury ’em!

That Anonymous Coward (profile) says:

Perhaps it is time for the ISPs to take a risk.
Shut down.
The law is pushing them to do the impossible or face liability to appease certain cartels. Perhaps giving the people a reason to apply pressure to the government to fix this broken insanity might be the right thing.
Talking about it, showing example after example hasn’t managed to get them to balance the law… perhaps having irate voters calling for them to be replaced might remind them of their duty to represent the people and not just corporate sponsors.

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