Dutch courts order dynamic blocking injunction in long-running dispute between BREIN and ISPs
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Relevant facts
Brein Foundation (BREIN) is a Dutch rights-holders' association, which brought a lawsuit against Dutch ISPs (internet access providers) Ziggo B.V. and XS4ALL B.V. It requested the ISPs to block the IP addresses and (sub)domain names through which TPB operates and the (sub)domain names through which TPB can be reached for their subscribers (known as a "dynamic blocking injunction"). TPB is a BitTorrent peer-to-peer (P2P) file sharing site that lists catalogues of files (such as music and film files) that are shared via trackers.
In deciding whether to order the injunction, the Court of Appeal applied the legal framework from the CJEU's judgment in the UPC Telekabel Wien case (C-314/12), one of the key judgments in a series of rulings from the CJEU in relation to blocking injunctions.
Court of Appeal's ruling
The Court of Appeal considered that a dynamic blocking injunction should be assessed in accordance with the requirements laid down in the UPC Telekabel Wien decision. However, the present case was different: in UPC Telekabel Wien the CJEU ordered a result-orientated obligation, i.e. blocking all access to the infringing content, without stipulating by which measures this result had to be achieved. However, in this case, BREIN provided a list of specific IP addresses to be blocked.
The Court of Appeal held that the injunction requested did not in and of itself detract from the required comparability with a fair balance between the fundamental rights concerned, as required by the UPC Telekabel Wien decision, namely the:
- protection of (intellectual) property;
- freedom of information; and
- freedom to conduct a business.
The double condition of the UPC Telekabel Wien decision
According to UPC Telekabel Wien, two conditions must be met to impose a dynamic block injunction: -
1. The first condition was that the requested measure does not unnecessarily deprive internet users of the possibility of lawfully accessing the information available. The Court of Appeal stressed that the blocking pertains only to a minute part of the information available on the internet, since the blockage is limited to the IP addresses/ domain names through which TPB operates, and does not affect access for the ISPs' subscribers to everything that is otherwise available worldwide on the internet. Furthermore, the Court of Appeal considered that the blockade was proportionate to the extent and seriousness of the copyright infringements committed on TPB. This fulfilled the first condition.
2. The second condition was that the requested measure has the effect of preventing unauthorised access to protected subject-matter or, at least, of making it difficult to achieve unauthorised access and of seriously discouraging internet users who are using the services of the ISP from accessing the infringing subject matter made available to them. The Court of Appeal held that the claimed blocking has the effect of preventing or at least complicating the unauthorised invocation of protected works and seriously discouraging internet users who use the services of the ISPs from gaining access to those protected works. Therefore, the second part of the double condition of the UPC Telekabel Wien decision was met.
Freedom to conduct a business
The ISPs further argued that the requested injunction constituted an unacceptable encroachment on the freedom of entrepreneurship. The Court of Appeal, however, considered that even if a blocking injunction would entail considerable costs, considerable organisational consequences, and difficult and complex technical solutions, it did not necessarily follow that the freedom of entrepreneurship of the ISPs had to outweigh the importance of the enforcement of rights guaranteed by the fundamental right of (intellectual) property. In the case at hand, the ISPs stated that the costs of complying with the blocking injunction would amount to €50,000 – 60,000 per year. According to the Court of Appeal, the claimed order does not demand unbearable sacrifices from the ISPs, is not unreasonable, and can be regarded as a relatively minor encroachment of their freedom of entrepreneurship.
Result: In the light of the foregoing considerations, the Court of Appeal held in its judgment that the dynamic blocking claimed by BREIN was compatible with the fair balance between the fundamental rights of (intellectual) property, the freedom of information and the freedom of entrepreneurship.
Closing remarks
Ziggo and XS4ALL must now block the domain names and IP addresses from a list provided by BREIN. This might be the culmination of a legal battle that has lasted nearly a decade and began at a time when torrent sites were much more popular than they are today. As early as 2012, the District Court of The Hague decided that Ziggo and XS4ALL should block TPB, but that decision was overturned on appeal. After that, the Supreme Court referred - following the UPC Telekabel Wien decision – the case to the Court of Appeal for further consideration and decision. That has now happened. Formally, Ziggo and XS4ALL could still appeal to the Supreme Court.
XS4ALL states (in a post on its website) that it respects the decision, but emphasises that it remains against blocking traffic to websites abroad. According to XS4ALL, blocking IP addresses and (sub) domains will interfere with the architecture of the internet.
BREIN states (on its website) in response to the decision that it is important to block access to other popular illegal sites in addition to TPB. Actions are being prepared to that end, according to BREIN.
With special thanks to Luuk Jordens, Associate, co-author of this blog.