Belgium: Supreme Court Decision on IP blocking also impacting gaming industry

by DLA Piper
Contact

[co-author: Ivanka Zdravkova]

By the judgment rendered on 22 October 2013 in the Belgian version of the long-lasting The Pirate Bay saga, the Belgian Court of Cassation (Belgium’s Supreme Court) confirmed the lawfulness of a far-reaching injunction order against all national Internet service providers. According to this judgment, the examining magistrate (juge d’instruction) is entitled to order, in a single injunction, all national Internet service providers to block access to IP rights-infringing content which is hosted by a server, linked to a specific main domain name, and such by employing all possible technical means at their disposal or at least by blocking all domain names that refer to a specified main domain name (“thepiratebay.org“).

According to the Court of Cassation, such a judicial order does not impose a general obligation of monitoring upon the Internet service providers and, therefore, does not constitute a violation of Article 21(1) of the Belgian Act of 11 March 2003 on certain legal aspects of information society services (the “E-Commerce Act”) implementing Article 15(1) of the EC Directive 2000/31/EC of the European Parliament and the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (the “E-Commerce Directive”).

  1. The context

In 2010, strengthened by a judgment of the Danish Court of Cassation of 27 May 2010 and considering that actions against the founders or hosting providers of The Pirate Bay were both insufficient and inefficient, the Belgian Anti-Piracy Federation (“B.A.F.”) applied for an injunction order before the President of the Commercial Court of Antwerp, seated as in interlocutory proceedings, against two of the biggest Belgian Internet providers, Telenet and Belgacom, in order to render access for Telenet and Belgacom customers to the websites of The Pirate Bay impossible. During the introductory proceedings, B.A.F. requested the President, however, to already issue the same cease and desist order as a provisional (interim) measure. The claim of B.A.F. for such provisional measure was dismissed by the judgement of 8 July 2010 – a decision to which it appealed.

By the judgment of 26 September 2011, the Court of Appeal of Antwerp, also ruling on the merits, reformed the aforementioned judgment. After ascertaining that the websites of The Pirate Bay are indeed copyright infringing, the Court of Appeal carefully examined the limited liability and the monitoring obligations for intermediary service providers under the E-Commerce Directive, as well as the proportionality principle, and ordered Telenet and Belgacom to cease the contested infringements by applying DNS-blocking with regard to a number of exhaustively mentioned domain names, thus rejecting B.A.F.’s request to also extend the injunction to any other websites of “The Pirate Bay” B.A.F. would report to Telenet and Belgacom. The Court declared that the two Internet providers would fulfill their obligation as soon as the DNS-blocking of this exhaustive list of websites is applied.

As expected however, the judgment had a very limited dissuasive impact. Shortly after its rendering, access to the content of The Pirate Bay’s website was again made possible via other domain names.

Therefore, in 2012, a judicial enquiry was launched against unidentified persons for reason of violation of IP and anti-piracy legislation. In the framework thereof, the examining magistrate issued an order enjoining all Belgian Internet operators and distributors to block access to the content which is hosted by the server, linked to the domain name “thepiratebay.org“, in particularly by employing all possible technical means at their disposal or at least by blocking all domain names that refer to the server linked to “thepiratebay.org“. Thus, the injunction order did neither contain a time restriction nor an exhaustive list of domain names.

  1. The proceedings and the decision of the Court of Cassation

After having fruitlessly attempted to seek the annulment of the injunction order before the Court of First Instance of Mechelen, three Belgian Internet providers, Telenet, Tecteo and Brutele, filed an appeal before the Antwerp Court of Appeal, which was, again, declared unfounded by the judgment rendered on 14 February 2013.

Therefore, the aforementioned providers challenged the latter decision before the Belgian Court of Cassation. From an IP perspective, their last grievances deserve attention.

In summary, the plaintiffs claimed that the Court of Appeal, erroneously and in violation of – among other provisions – Article 52.1 of the Charter of the Fundamental Rights of the European Union and Article 21(1) of the E-Commerce Act, failed (i) to specify the particular time limit within which the Internet providers were bound by the blocking obligation, (ii) to specify the particular means they had to employ to comply with the injunction order and (iii) to exhaustively list the domain names to be blocked. In respect of the latter two grievances, the plaintiffs requested from the Court of Cassation to refer a question to the European Court of Justice for a preliminary ruling.

The Court of Cassation considered, in response to the aforementioned grievances, that an injunction order which is addressed to all national Internet access providers enjoining them to block access to infringing content which is hosted by a server, linked to a specific main domain name, by employing all possible technical means at their disposal or at least by blocking all domain names that refer to the said main domain name, and moreover containing an indication of the technical process to be used, does not constitute a monitoring obligation in the sense of Article 15(1) of the E-Commerce Directive or Article 21(1) of the E-Commerce Act. Indeed, according to the Court of Cassation, such an order does not require from the Internet providers to monitor the information they transmit or store, nor does it require from them to actively seek facts or circumstances indicating illegal activities.

As a result, the Court dismissed the grievances and refused to refer the questions to the ECJ for a preliminary ruling.

  1. Conclusion

By confirming the legality of the above described judicial order, the Belgian Court of Cassation, justly, strengthens the position of the IP holders in their battle against online IP infringements.

However, it is also appropriate to question whether this decision really complies with the general monitoring prohibition, which holds that providers cannot be generally obliged to monitor the information which they transmit or store nor to actively seek facts or circumstances indicating illegal activity (Article 15(1) of the E-Commerce Directive), as well as with other binding provisions, pursuant to which judicial orders that are necessary to ensure the enforcement of IP rights shall be fair and equitable, effective, proportionate and dissuasive, shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse, and shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays (such as Article 3 of the Enforcement Directive 2004/48/EC of 29 April 2004).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© DLA Piper | Attorney Advertising

Written by:

DLA Piper
Contact
more
less

DLA Piper on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.