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."

Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    That One Guy (profile), Mar 28th, 2014 @ 1:47am

    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...'

    'What?'

    '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...'

     

    reply to this | link to this | view in thread ]

  2.  
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    Ninja (profile), Mar 28th, 2014 @ 3:18am

    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.

     

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  3.  
    identicon
    Anonymous Coward, Mar 28th, 2014 @ 3:31am

    So, it's just another method of cost-shifting pre-litigation.

    bonus! -.-

     

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  4.  
    identicon
    Anonymous Coward, Mar 28th, 2014 @ 5:13am

    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, Weather.com, GoToMeetings, and such. After all, how are the ISP's to know these *aren't* infringing sites. Bury 'em!

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Mar 28th, 2014 @ 5:23am

    Re: Maybe we'll get lucky

    If they did that, all the TV and cable companies would cheer, as they would think it would drive customers back to them.

     

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  6.  
    identicon
    beech, Mar 28th, 2014 @ 5:28am

    "the possibility of lawfully accessing the information available ..."

    Something about that phrase just chills me to the bone. Maybe the part where the government is deciding which information is legal in which circumstances.

     

    reply to this | link to this | view in thread ]

  7.  
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    Geno0wl (profile), Mar 28th, 2014 @ 6:04am

    Figuring out what content is legal against what content is infringing is too hard for us poor lawyers and judges!
    Lets just pass that task onto the ISP guys, they surely know more about content infringement since they are the ones who run the internet. What could go wrong?

     

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  8.  
    identicon
    Anonymous Coward, Mar 28th, 2014 @ 7:18am

    Re:

    money, that is why.

    Going after the source is hard and they are less likely to have money to extort.

    Going after the intermediaries is much easier and considering they are reasonably large corporations, they have money so they are the juicy target worth going after.

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    PRMan, Mar 28th, 2014 @ 7:34am

    Re: Re: Maybe we'll get lucky

    Just like the Belgian news sites cheered? No, they went crying to the court when Google followed their wishes and completely blocked them.

     

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  10.  
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    Anonymous Coward, Mar 28th, 2014 @ 7:39am

    Absolute Madness.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Coward, Mar 28th, 2014 @ 8:09am

    Re: Re: Re: Maybe we'll get lucky

    Note, the proposal was to block videos only, and not their adverts and sites with images only. Because of that the companies would still have a web presence to advertise their services.

     

    reply to this | link to this | view in thread ]

  12.  
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    Mr. Oizo, Mar 28th, 2014 @ 8:30am

    Jeeh.

    For their next trick the ISP's will certainly pull a rabbit out of their hat. Come on, if the legal channels cannot even define what is 'lawful content', how do they expect the ISP's to know ?

     

    reply to this | link to this | view in thread ]

  13.  
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    That Anonymous Coward (profile), Mar 28th, 2014 @ 12:46pm

    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.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Anonymous Cowherd, Mar 29th, 2014 @ 9:11am

    (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


    All site blockades so far have failed this test.

     

    reply to this | link to this | view in thread ]


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