The EUIPO recently released a Study on Dynamic Blocking Injunctions with a collection of the case-law published so far throughout the European Union. The study underlines the impact of unlawful online activities that target copyright protected materials and explores the existing legal remedies against IPR infringement. Through the analysis of norms, cases, and practices available within the EU, the study identifies key aspects of blocking injunctions, with a special focus on dynamic injunctions. These aspects include the availability of static and dynamic blocking injunctions, their scope, balancing of rights and interests, required and/or admissible evidence, technical solutions applied, and the implementation of dynamic blocking injunctions in the different jurisdictions.
Blocking injunctions and dynamic blocking injunctions in Europe
Blocking injunctions are orders requiring an Internet intermediary to implement technical measures directed at preventing or disabling access to a specific Internet location (e.g., DNS blocking, IP address blocking, URL filtering). A second category of blocking orders, called dynamic blocking injunctions, are of a more flexible and modular nature and are meant to cover repeated infringements to enhance the effectiveness of the measures for rightsholders. Some Member States, such as Ireland, Spain, and the UK, have also introduced a subspecies of dynamic blocking injunctions aimed at limiting infringement of rights for live (sports) events. Live blocking injunctions are orders that target IP addresses that are being used during a live event to share live audiovisual footage with the public without authorization and they only have effect during the time that the live match/event is being broadcast.
Overall, the legal basis for blocking injunctions is provided by Article 18(1) of the e-Commerce Directive, Article 8(3) of the InfoSoc Directive, and Article 11 of the IPR Enforcement Directive. The recent proposal for the Digital Services Act (DSA) also includes provisions that might serve to harmonize the notion of injunctions against providers of digital or intermediary services. Copyright infringement is the main target of these measures in the Member States, but there does not seem to be any specific limitation on the subject matter that can be covered by a dynamic injunction.
The Court of Justice of the European Union (CJEU) has confirmed the compatibility of blocking injunctions with EU law via a number of judgments that also support the use of dynamic blocking injunctions. At the national level, however, while static blocking injunctions are available in all Member States, the use of dynamic blocking injunctions has been tested in some national courts (e.g., in Denmark, France, Ireland, Italy, the Netherlands, Spain, and Sweden).
In Italy for example, recently the TV platform Sky Italy and Italy’s major soccer league, Lega Nazionale Professionisti Serie A, filed a legal action before the Court of Milan against several major Italian ISPs, such as TIM, Vodafone, Fastweb, Wind, Tiscali, and content delivery network (CDN) operator Cloudflare Inc. The Court of Milan, with an order issued on October 5, 2020, ordered that current and future domain names of several IPTV services that were distributing audiovisual content illegally be blocked. In its decision, the court expressly stated that the differentiation between hosting providers, caching, and “mere conduit” services was irrelevant, as the opportunity to issue an injunction against an intermediary does not depend on the intermediary’s liability for the (alleged) infringement at stake.
Case law of the CJEU and national courts
With regard to the scope of dynamic blocking injunctions, it must be noted that subject matter, targeted intermediaries, targeted websites, and temporal and territorial scope may vary in different jurisdictions.
Furthermore, the effectiveness of blocking remedies largely depends on the proper balancing of the rights and interests of the persons concerned. Such balancing may lead to uneven results in different Member States, as each provides its own legal requirements for copyright protection, as well as its particular procedural rules. However, some patterns may be identified, and there are still common principles that might serve as a reference for further development of policies and practices in the field. These include the need to demonstrate the rightsholder’s status and ownership of rights, evidence of alleged infringement, proportionality, and the appropriateness and/or reasonableness of the requested measure. To this end, static and dynamic blocking case-law shows the presence of legal entanglement among national courts of different Member States. Legal entanglement can be considered a form of informal cross-border cooperation and occur when national courts refer to judgments from other jurisdictions.
In any case, balancing and proportionality with regard to injunctions have been studied at length in terms of risk of over- and under-blocking. However, while conditions and methods for blocking injunctions are a matter of national law, the scope of these injunctions, and in particular the question of whether blocking orders are compatible with EU law, has been subject to CJEU scrutiny. In fact, the CJEU has established that EU law does not impose or preclude worldwide measures, and accordingly it invested national courts with the ability to decide whether extraterritorial injunctions could be imposed according to their own balancing of fundamental rights in accordance with national and international norms. In this context, a blocking injunction must be targeted and specific with a territorial scope no broader than necessary to achieve its objective, according to fundamental rights balancing and international law, including the doctrine of comity.
Administrative orders and soft law arrangements
In line with the provision of Article 14(3) of the e-Commerce Directive, some Member States have included administrative authorities in their procedural and enforcement models, to the extent that such authorities are qualified to issue website-blocking orders. Italy, for example, endorsed such a model and empowered AGCOM, the Italian Communication Authority, to deal with online copyright enforcement, including granting it the power to issue blocking orders. In any case, in Italy, Greece, and Spain the use of the administrative procedure does not prevent the filing of civil or criminal actions.
Several Member States have also adopted “soft law” arrangements, such as codes of conduct (CoC) or other voluntary measures. A specific regulatory framework for developing codes of conduct exists in Italy. This provides that (i) business, professional, and consumer associations and organizations promote the adoption of codes of conduct and inform the Ministry of Productive Activities (now Ministry of Economic Development) and the European Commission of any useful information on their application and their impact on practices and habits related to e-commerce; (ii) a code of conduct, if adopted, must be made available electronically and must be drafted in at least one EU language in addition to Italian and English; and (iii) when codes of conduct are being drawn up, the protection of minors and human dignity must be guaranteed. Internet service providers can implement codes of self-conduct that govern the review of claims concerning (among other things) any unlawful behavior by their customers.