European courts have ordered ISPs to block access to pirate file sharing sites in other countries for years. The jurisdiction for doing so is Article 8(3) of the EU Copyright Directive (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001) which is transposed into the laws of EU Member States. The courts have considered these orders to represent a reasonable balance between the interests of copyright holders, intermediaries, and end users. See, Keeping The Pirate Bays at Bay.
Last week the Court of Justice of the European Union (CJEU) confirmed in UPC Telekabel Wien (Judgment of the Court)  EUECJ C-314/12 (27 March 2014) that such orders may be made without violating the fundamental rights guaranteed by the EU Charter of Fundamental Rights of the European Union (‘the Charter’).
The case, which was referred from an Austrian court, arose from an attempt to block a website that was offering, without the consent of the copyright holder, downloads and streams of films. The ISP opposed the relief which resulted in several questions being referred to the CJEU.
The first question was:
whether Article 8(3) of Directive 2001/29 must be interpreted as meaning that a person who makes protected subject-matter available to the public on a website without the agreement of the rightholder, for the purpose of Article 3(2) of that directive, is using the services of the internet service provider of the persons accessing that subject-matter, which is to be regarded as an intermediary within the meaning of Article 8(3) of Directive 2001/29.
The CJEU answered the question in the affirmative holding that the copies of the films had been made available to users of the website without the consent of the rightholders. This unauthorized act constituted the infringing act of making the film available to the public, even without evidence of any downloading or streaming of the content. As the website to be blocked appeared to be located in Germany, the copyright right of making available was infringed in Austria by the file being made available for streaming or downloading by users in Austria. Article 8(3) enables rightsholders to apply for an injunction against intermediaries whose services are used by a third party to infringe one of their rights. Accordingly, ISPs are intermediaries against whom blocking orders could be made. According to the Court:
Having regard to the objective pursued by Directive 2001/29, as shown in particular by Recital 9 thereof, which is to guarantee rightholders a high level of protection, the concept of infringement thus used must be understood as including the case of protected subject-matter placed on the internet and made available to the public without the agreement of the rightholders at issue.
Accordingly, given that the internet service provider is an inevitable actor in any transmission of an infringement over the internet between one of its customers and a third party, since, in granting access to the network, it makes that transmission possible… it must be held that an internet service provider, such as that at issue in the main proceedings, which allows its customers to access protected subject-matter made available to the public on the internet by a third party is an intermediary whose services are used to infringe a copyright or related right within the meaning of Article 8(3) of Directive 2001/29.
Such a conclusion is borne out by the objective pursued by Directive 2001/29. To exclude internet service providers from the scope of Article 8(3) of Directive 2001/29 would substantially diminish the protection of rightholders sought by that directive…
Nor is the conclusion reached by the Court in paragraph 30 of this judgment invalidated by the assertion that, in order to obtain the issue of an injunction against an internet service provider, the holders of a copyright or of a related right must show that some of the customers of that provider actually access, on the website at issue, the protected subject-matter made available to the public without the agreement of the rightholders.
In view of the above, the answer to the first question is that Article 8(3) of Directive 2001/29 must be interpreted as meaning that a person who makes protected subject-matter available to the public on a website without the agreement of the rightholder, for the purpose of Article 3(2) of that directive, is using the services of the internet service provider of the persons accessing that subject-matter, which must be regarded as an intermediary within the meaning of Article 8(3) of Directive 2001/29.
The next question posed to the Court was whether granting an injunction blocking order was inconsistent with the fundamental rights recognized by Article 51 of the Charter when that injunction does not specify the measures which the ISP must take and when the ISP can avoid incurring coercive penalties for breach of that injunction by showing that it has taken all reasonable measures to comply.
The CJEU answered this question in the negative. It noted that the effect of such an injunction would impinge on the freedoms of ISPs to conduct their businesses, something that is protected under the Charter. However, such orders could be made in the circumstances under review where the ISP could determine the specific methods used to achieve the result and the ISP could avoid liability by proving it has taken all reasonable measures to comply. The ISP was obligated to choose measures to strictly target bringing an end to the infringing conduct without affecting customers of the ISPs who are using the provider’s services in order to lawfully access information.
The CJEU also held that the Charter did not prohibit making blocking orders even if they would not be entirely effective. It was enough that such orders would make it difficult to achieve accessing infringing content and seriously discourage internet users from accessing such content.
The Court summarized its answer to the question posed as follows:
In the light of the foregoing considerations, the answer to the third question is that 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.