What’s the link between the EU’s E-commerce Directive, the Information Society Directive and the Intellectual Property Enforcement Directive? The answer is, they are all doing roughly the same thing: helping rights holders to protect themselves from unauthorised users.
And what links the Data Protection Directive and the Privacy and Electronic Communications Directive? Again, they’re covering similar ground: protecting the privacy and freedom of individuals using the internet.
Both sets of directives protect the interests of "owners" and "users", and it is up to the courts, at national and European level, to determine where the balance lies.
Keeping within the law
Some recent judgements have helped to lay down the ground rules regarding online infringement.
In 2010, a number of entertainment companies took action against Newzbin, a site that indexed unofficial copies of films on Usenet. Newzbin.com was shut down, but reopened – now hosted in the Seychelles – under the name Newzbin2 less than a month later.
In 2011, the Motion Picture Association (MPA) took a different tack by going after the UK’s largest ISP, British Telecom (BT). The MPA sought an order to deny BT’s customers access to the Newzbin site. An injunction was granted and other UK ISPs have since implemented similar measures in response to further court orders.
Still, concerns remain regarding court ordered blocking procedures. For example, SABAM, a collective licensing agency, obtained an injunction from the Belgian courts requiring a Belgian ISP, Scarlet Extended, to install a system to monitor all communications on its network and then filter out copyright infringements.
However, in November 2011, the European Court of Justice ruled that this measure was inconsistent with EU law since it imposed a general monitoring condition which was deemed incompatible with the E-Commerce Directive and the applicable fundamental rights of users. The court also confirmed that users’ IP addresses are protected personal data.
In February 2012, SABAM again tested the system by seeking an order to impose a general monitoring obligation on the Netlog social networking site, which allows users to upload content. The Belgian Courts referred the matter to the European Court which, once again, directed the order be rejected.
The European Court of Justice is alert tothe need to safeguard operators of internet services and their legitimate users
Court orders leading the way
But a UK High Court ruling on 20 February 2012 may signal the way forward – certainly in the UK courts. A number of record companies sought an injunction against a number of UK ISPs (accounting for some 94% of the UK market) to prevent access to the filesharing website, The Pirate Bay.
It was found that both users and operators of Pirate Bay infringed the copyrights of the record companies. A further hearing in June will decide how these ISPs should block the site. The court also indicated that it saw no reason why in future the determination of copyright infringement and the seeking of a suitable order should not be dealt with in a single proceeding.
I believe that an order in this case will be granted in similar terms to that granted in Newzbin2, specifying the internet addresses and URLs to be blocked and the technical means by which ISPs will do the blocking.
What can we learn from these cases? The European Court of Justice is alert to the need to safeguard operators of internet services and their legitimate users by objecting to broad, blanket monitoring obligations being imposed on ISPs or website operators.
Nevertheless, while not directly preventing the activities of online pirates, with the UK courts showing the way, by taking advantage of court orders of clearly defined scope, rights holders can make access to unauthorised content more difficult.
John Moffat is senior attorney at Avidity IP
This was first published in March 2012