[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”).
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.
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.
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).