The Role of Human Rights in Copyright Enforcement Online: Elaborating a Legal Framework for Website Blocking

Abstract

I. INTRODUCTIONOver past few years, intellectual property (IP) enforcement by ordering Internet access providers to block infringing websites has been rapidly evolving in Europe. The practice is increasing since going after direct infringers has proven to be heavy-handed, disproportionate, and ineffective,1 whereas targeting website operators is not an easy task either, as these often run their services from another jurisdiction,2 easily change location3 or conceal identity.4 As a result, injunctions against Internet access providers often remain most efficient option left to right-holders.in European union, legal basis of such injunctions rests on Article 8(3) InfoSoc.5 According to this article, States ensure that right-holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right. An almost identical provision, but with regards to all intellectual property rights, is enshrined in third sentence of Article 11 of Enforcement Directive.6 in addition, Article 12(3) of E-Commerce Directive7 provides that so-called mere conduit liability exemption that would normally apply to internet access providers8 shall not affect possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring service provider to terminate or prevent an infringement. Analogously, Recital 45 of ECommerce Directive states following:The limitations of liability of intermediary service providers established in this Directive do not affect possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or administrative authorities requiring termination or prevention of any infringement, including removal of illegal information or disabling of access to it.9At same time, Article 15 of E-Commerce prohibits general monitoring obligation.10Even though authorized in principle by European legislator, blocking injunctions have also proven problematic with regard to fundamental rights enshrined in European legal order, such as users' right of access to information and Internet service providers' ability to freely conduct their business. As noted by European Commission in its 2007 impact assessment, the adoption of blocking measures necessarily implies a restriction of human rights . . . and therefore, it can only be imposed by law, subject to principle of proportionality, with respect to legitimate aims pursued and to their necessity in a democratic society . . . .11 A uniform approach towards achieving proportionality in website blocking is, however, currently lacking in Europe. inasmuch as InfoSoc Directive left [t]he conditions and modalities relating to such injunctions . . . to national law of Member States,12 blocking practices vary significantly across Europe. This generates further discrepancies in case law, leav[ing] much to be desired in terms of human rights13 and overall level of harmonization.14As a response to this situation of legal uncertainty, two major European courts - Court of Justice of European Union (CJEU) and European Court of Human Rights (ECtHR) - have recently provided some guidance on fundamental-rights balancing in cases of website blocking on grounds of copyright infringement.15 The point of departure has been two landmark decisions of these courts, which thus need to be briefly presented: so-called UPC Telekabel judgment of CJEU and Akdeniz v. Turkey decision of ECtHR.UPC TelekabelThe case before CJEU, UPC Telekabel,16 involved a major Austrian internet access provider that was ordered, at request of two film production companies, to block access of its customers to website kino.to, offering films of companies for streaming or download without right-holders' consent. …