Website Blocking Injunctions in Flux: Static, Dynamic and Live

Blocking injunctions find their legal basis in multiple EU provisions. First, Article 18(1) of the ECD instructs Member States to ensure the availability of court actions against information society services’ activities to terminate any alleged infringement and prevent further impairment of interest involved.¹³ Meanwhile, the ECD also limits the scope of its liability exemptions (mere conduit, hosting and caching) by providing that the exemptions ‘shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information’.¹⁴ The ECD, thus, makes it possible for MS to make available blocking orders, both issued by judicial and administrative authorities, and confirms their consistency with EU law. However, a positive obligation to provide injunctions and legal redress to rightholders for IPR infringement within an EU law framework comes from the InfoSoc Directive. The InfoSoc Directive clarifies that the availability of these injunctions is made necessary by the fact that ‘in the digital environment, in particular, the services of intermediaries may increasingly be used by third parties for infringing activities. In many cases, such intermediaries are best placed to bring such infringing activities to an end’.¹⁵ Thus, the InfoSoc Directive 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’.¹⁶ The limited copyright scope of the injunctions is, then, extended to IPR enforcement at large by the IPRED, which provides that ‘Member States shall also ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right, without prejudice to Article 8(3) of Directive 2001/29/EC’.¹⁷

Some provisions in the recently proposed Digital Service Act (‘DSA’) might also serve to harmonize the notion of injunctions against providers of digital or intermediary services. First, the DSA states that providers of intermediary services, including also access providers who are the target of blocking injunctions,¹⁸ must specify to the issuing judicial or administrative authority the action taken and the moment it was taken, when receiving an order to act against illegal content.¹⁹ Secondly, the orders should be harmonized by including, inter alia, (i) a statement of reasons explaining why the information is illegal content under the law and (ii) one or more exact uniform resource locators and, where necessary, additional information enabling the identification of the illegal content, and (iii) information about redress available to the intermediary service and the provider of the content.²⁰ Finally, the DSA sets up a system of national Digital Service Coordinators and providers that ‘the Digital Services Coordinator from the Member State of the judicial or administrative authority issuing the order shall, without undue delay, transmit a copy … to all other Digital Services Coordinators’.²¹

While conditions for and modalities of blocking injunctions are a matter of national law, the scope of these injunctions and, in particular, whether blocking orders are compatible with EU law, has been confirmed by the Court of Justice of the European Union (CJEU) through a number of decisions. First, the CJEU has held that the notion of ‘intermediary’ is broad, in particular, encompassing, which is relevant for our purposes, (Internet) access service providers.²² In justifying this construction of the notion of intermediaries, the CJEU explains that ‘given that the internet service provider is an inevitable actor in any transmission of an infringement over the internet between one of its customers and a third party, since, in granting access to the network, it makes that transmission possible […], it must be held that an internet service provider […] is an intermediary whose services are used to infringe a copyright or related right within the meaning of Article 8(3) of [the InfoSoc] Directive 2001/29’.²³ In general, the CJEU clarifies that for an economic operator to be considered as ‘intermediary’, it is sufficient that they provide inter alia a service capable of being used to infringe IPRs.

Secondly, in Mc Fadden, the CJEU has found that the mere conduit exemption ex Article 12(1) of the ECD does not preclude a person from claiming injunctive relief from an access provider against the continuation of an infringement occurring through that access provider’s network.²⁴ Thus, injunctions must be available in MS to order an access provider to prevent continuation of the infringement, which implies that copyright holders can seek injunctions to stop future infringements, given that such injunctions respect the balance between the interests at stake and protect fundamental rights.²⁵

Thirdly, the CJEU makes clear that blocking orders would fall within the scope of Article 8(3) InfoSoc Directive and Art 11 IPRED.²⁶ Besides general compatibility of blocking injunctions with EU law, UPC Telekabel also clarifies that blanket injunctions are...