The Ultimate Copyright Shopping Opportunity – Jurisdiction and Choice of Law in Website Blocking Injunctions

Abstract

So-called “mere conduit” internet service providers (ISPs) have been issued injunctions to block access to websites to try to mitigate online copyright infringement. Such orders have an international and ubiquitous character, because various parties reside and infringing acts typically occur in different states. This raises questions as to which court has jurisdiction to try the case and to what extent, and which laws apply. These issues are examined de lege lata from the perspective of forum-shopping and choice of law, first in the context of proceedings against the website operator and then against the ISP. We see that the flexibility afforded by EU case law provides options for localizing infringing acts and damages and selecting the jurisdiction and applicable law. A typical but complex scenario is a state enforcing its laws and policies on a foreign website at the user end. The state of the ISP’s domicile has global jurisdiction but local law may only be applied to communications that go through the territory of that state. This portrays the distributive effect of the Rome II Regulation which usually leads to the application of multiple laws. Respectively, a foreign court would have local jurisdiction if the affected ISP at least had a branch or an agency there. Jurisdiction may also be based on preventive or protective measures with arguable cross-border limitations. On the other hand, Art. 5(3) of the Brussels I Regulation on tort liability and Art. 6(2) on third party proceedings seem inapplicable to these injunctions.