The Hoge Raad (Dutch Supreme Court) has asked the Court of Justice of the European Union (CJEU) two questions which go to the heart of whether internet service providers (ISPs) can be required to block access to websites which promote the sharing of copyright-infringing content. The answers to the questions could have a significant impact on the ability of the English Courts to grant blocking injunctions.
The Dutch case giving rise to the questions, BREIN v ZIGGO and XS4ALL concerns a website known as The Pirate Bay. The Pirate Bay does not host infringing content, rather it is a BitTorrent tracking website. It provides a directory of content (such as audio and movie files) and assists internet users' computers in fetching numerous 'chunks' of a selected file from other users' computers. Only when those chunks are collated will there be a copy of the file.
The questions posed by the Hoge Raad query whether an ISP blocking order is permissible if the website does not actually host infringing content:
- Is there a communication to the public in the sense of Article 3(1) of the InfoSoc Directive (2001/29/EC) by the administrator of a website, if on that website no protected works are available, but there is a system ... where meta data relating to protected works on users' computers is indexed and categorized so that users can trace, upload and download the protected works?
- If the answer to question 1 is negative, does Article 8(3) of the InfoSoc Directive and Article 11 of the Enforcement Directive (2004/48/EC) allow for an injunction against an intermediary within the meaning of those provisions, if such intermediary facilitates infringing acts of third parties in the manner described in question 1?
In the UK over the past few years, numerous ISP blocking injunctions have been ordered, requiring the likes of BT, TalkTalk and Virgin Media to prevent their subscribers from accessing websites which are involved in the distribution of copyright infringing content such as films, music and e-books, and in respect of websites offering trade mark-infringing counterfeit goods (see our note on the Cartier case, which is due to be heard in the Court of Appeal in April 2016).
In 2012, Mr Justice Arnold reviewed the CJEU decisions concerning communication to the public with specific reference to The Pirate Bay. In that case, it was not contended that the operators of The Pirate Bay communicated copyright works to the public as is required by Article 3(1) of the InfoSoc Directive (so question 1 in the Dutch reference was not considered). However, the judge was satisfied that the users of The Pirate Bay communicate copyright works to the public, by allowing copies of audio files on their computers to be uploaded – and as such, the users infringe.
The judge went on to decide that the operators of The Pirate Bay authorise the users' infringing acts of copying and communication to the public, and in a later decision decided that there was clear jurisdiction to order an injunction against the ISPs, requiring them to block access to The Pirate Bay website.
The English Court's jurisdiction in The Pirate Bay case, and in numerous others, is found in section 97A of the Copyright Designs and Patents Act 1988, which implements Article 8(3) of the InfoSoc Directive. If the CJEU says 'no' to the second of the questions posed by the Hoge Raad, the fundamental basis for several of the ISP blocking injunctions currently in effect in the UK will be undermined.