In 2012, HOYNG ROKH MONEGIER obtained the first website blocking order in the Netherlands on behalf of a number of movie studios (represented by anti-piracy organisation BREIN). On appeal, the order was suspended due to an incorrect application of the law by the court of appeal. The appellate court’s decision was successfully appealed to – and overturned by – the Dutch Supreme Court and subsequently the Court of Justice of the European Union. In January 2018, HOYNG ROKH MONEGIER obtained yet another important victory for the same movie studios, this time coordinated by the Motion Picture Association (MPA ): the first website blocking order in Spain for the film industry. The Spanish decision was not appealed and has thus become final.
Website blocking orders are directed against Internet service providers (ISPs), in their capacity as intermediaries necessary for the infringement to take place. This type of action, which does not require liability on the part of an ISP, is aimed at having the ISP block access to illicit sources of copyright-protected material.
Site-blocking injunctions are a convenient and effective remedy, which avoid the complications associated with proceedings against the direct infringers (i.e. the owners or administrators of websites making available illegal content to users), which tend to be domiciled or based in unknown locations or in places where legal action is difficult.
Website blocking injunctions are based on Article 8(3) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society (INFOSOC Directive) and Article 11 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (Enforcement Directive). Both directives have been duly implemented by the EU Member States in their national legal systems.
Website blocking injunctions have become an increasingly popular remedy following the CJEU’s UPC Telekabel judgment of 27 March 2014 (C-314/12), which clarified that ISPs are “an inevitable actor in any transmission of an infringement over the internet between one of its customers and a third party“ and concluded that “an internet service provider […] 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.”
The decisions we obtained on behalf of BREIN and the MPA are certainly groundbreaking: the national courts confirmed the validity of seeking site-blocking injunctions against ISPs in the Netherlands and Spain. The main Dutch and Spanish ISPs (which hold the majority of the market share for Internet access in their respective countries) are currently blocking several pirate websites found to have engaged in massive copyright infringement.