European court supports granting of site-blocking injunctions against ISPs

In an important ruling for content owners trying to eliminate internet piracy and intermediaries caught up in such piracy, the European Court of Justice has confirmed that site-blocking injunctions can be granted against internet service providers (ISPs), provided the injunctions strike a ‘fair balance’ between fundamental rights. The ruling takes a similar approach to that already taken by the English High Court in equivalent cases but does suggest that more types of intermediaries may be subject to the injunctions than has previously been the case.

The Copyright Directive requires EU member states to enable rights holders to apply for injunctions against ‘intermediaries whose services are used by a third party to infringe’ copyright (article 8[3]). The case was about what sort of ‘intermediaries’ can be subject to such injunctions and what sort of injunctions can be granted against them.

The decision arose out of Austrian litigation between two film producers and an Austrian ISP. The film producers applied for an injunction requiring the ISP to prevent its users from accessing kino.to, a website that enabled its and the ISP’s users to watch or download films, which infringed the film producers’ copyright. The nature of the injunction granted by the Austrian court was important: it was for an absolute bar on the ISP ‘facilitating access’ to kino.to and did not specify the means to be used by the ISP. The ISP, in the Vienna Higher Regional Court’s view, had to remain free to decide the means to be used…

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