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European Cases on Ordering ISPs to Block Certain Websites

In the last few months, Huťko noticed exponential rise of the cases that demanded access providers to render certain infringing websites inaccessible to its subscribers. The legal basis is usually national counterpart of the Art. 8(3) of the InfoSoc directive, which provides that "Member States shall ensure that rightholders 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." as most of them are copyright cases. For other IPRs however, Art. 11 of Enforcement directive is available [see also cases L´Oréal v. eBay C-324/09, Frisdranken Industrie Winters C-119/10].

Huťko is very curious about the outcome of Scarlet Extended C-70/10 in this regard, as this might shed some more light also on the blockage practice. In Scarlet Extended, Advocate General argues that imposing the filtering technology is not sufficiently “prescribed by law” a required by Art. 7, 8, 11 of the Charter. Huťko believes that Art. 8(3) of the InfoSoc directive and Art. 12(3) of the eCommerce directive are quite clear that such injunction are possible. It is however questionable whether as measure conflicting with the right to private life (Art. 7 Charter), right to protection of personal data (Art. 8 Charter) and right to freedom of expression and information (Art. 11 Charter) is proportional and foreseen by the law.

PS: Huťko wonders why AG's opinion in Scarlet Extended is available in all possible languages including Maltese, but still not in English or German. Anybody knows?
Posted by Huťko at 1:35 PM
Labels: injunctions, Liability of ISPs, safe harbours
 
Thanks to your inventory, I have been able to include the German case you mentioned in a paper I just published!

This paper is on the Scarlet case, and the other case brought by SABAM before the EUCJ.
I have no pointer to an English version of the AG opinion, but you may learn more on the case reading my paper at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1954760

November 6, 2011 at 5:04 PM