OPINION OF ADVOCATE GENERAL
delivered on 26 November 2013 (1)
UPC Telekabel Wien GmbH
Constantin Film Verleih GmbH
Wega Filmproduktionsgesellschaft GmbH
(Request for a preliminary ruling from the Oberster Gerichtshof (Austria))
(Information society — Intellectual property rights — Directive 2001/29/EC — Article 8(3) of Directive 2001/29/EC — Article 16 of the Charter of Fundamental Rights — Measures against a website massively infringing copyright — Injunction against an Internet access provider as an intermediary whose services are used by a third party to infringe a copyright — Injunction ordering the blocking of a copyright-infringing website)
1. The present case affords the Court the opportunity to develop further its case-law on the protection of copyright on the Internet. (2) In addition to the content and procedure for the issuing of an injunction pursuant to Article 8(3) of Directive 2001/29/EC, (3) it concerns the question whether an injunction can be issued at all against an Internet service provider (‘ISP’) which provides Internet access not to the operator of a website massively infringing copyright, but only to users accessing that website.
I – Legal framework
A – EU law
2. Recital 59 in the preamble to Directive 2001/29 states:
‘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. Therefore, without prejudice to any other sanctions and remedies available, rightholders should have the possibility of applying for an injunction against an intermediary who carries a third party’s infringement of a protected work or other subject-matter in a network. This possibility should be available even where the acts carried out by the intermediary are exempted under Article 5. The conditions and modalities relating to such injunctions should be left to the national law of the Member States.’
3. Article 8(3) of Directive 2001/29 provides:
‘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.’
4. Article 15 of Directive 2000/31/EC (4) provides, under the heading ‘No general obligation to monitor’:
‘1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.
2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.’
5. Article 3 of Directive 2004/48 (5) provides as follows:
‘1. Member States shall provide for the measures, procedures and remedies necessary to ensure the enforcement of the intellectual property rights covered by this Directive. Those measures, procedures and remedies shall be fair and equitable, and shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.
2. Those measures, procedures and remedies shall also be effective, proportionate and dissuasive and 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.’
B – National law
6. Paragraph 81 of the Bundesgesetz über das Urheberrecht an Werken der Literatur und der Kunst und über verwandte Schutzrechte (Austrian Federal Law on copyright in literary and artistic works and related rights (Urheberrechtsgesetz; ‘the UrhG’)) (6) provides:
‘(1) A person who has suffered an infringement of any exclusive rights conferred by this Law, or who fears such an infringement, shall be entitled to bring proceedings for a restraining injunction. Legal proceedings may also be brought against the proprietor of a business if the infringement is committed in the course of the activities of his business by one of his employees or by a person acting under his control, or if there is a danger that such an infringement will be committed; Paragraph 81(1a) shall apply mutatis mutandis.
(1a) If the person who has committed such an infringement, or by whom there is a danger of such an infringement being committed, uses the services of an intermediary for that purpose, the intermediary shall also be liable to an injunction under subparagraph (1). However, where the conditions for an exclusion of liability in accordance with Paragraphs 13 to 17 of the ECG exist in the case of that intermediary, proceedings may be brought against him only after he has been given a warning.’
7. Paragraph 13 of the E-Commerce-Gesetz (Law on e-commerce, ‘the ECG’) (7) deals with the exclusion of the liability of service providers acting as conduits. Paragraph 13(1) reads as follows:
‘A service provider who transmits in a communication network information provided by a recipient of the service or who provides access to a communication network shall not be liable for the information transmitted, provided that he
1. does not initiate the transmission;
2. does not select the receiver of the transmission; and
3. does not select or modify the information contained in the transmission.’
8. Paragraph 355(1) of the Exekutionsordnung (Code of Enforcement) (8) reads:
‘Enforcement against the person obligated to desist from an activity or to tolerate the carrying out of an activity shall take place at the time of consent to enforcement, by the imposition by the enforcement court, upon application, of a fine for any non-compliance after the obligation became executory. In the event of further non-compliance, the enforcement court shall, upon application, impose a further fine or a period of imprisonment of up to one year in total. …’
II – Facts and main proceedings
9. The website operating under the domain name kino.to enabled users to access a wide range of films protected by copyright. The films could either be watched by streaming or downloaded. The former implies the creation of a transient reproduction on the terminal equipment, the latter a permanent reproduction, generally for private use.
10. Among the films made available to the public on the website were works in which the rights are held by the plaintiffs in the main proceedings, namely Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft GmbH (‘the plaintiffs’). The plaintiffs had not given consent for that purpose.
11. UPC Telekabel Wien GmbH (‘the defendant’) is a major Austrian ISP. It has no legal relationship with the operators of the website kino.to and made neither Internet access nor storage space available to them. According to the findings of the referring court, however, it can almost certainly be assumed that individual customers of the defendant availed themselves of the kino.to offer.
12. The plaintiffs requested the defendant out of court to block the website kino.to. When it did not comply with that request, the plaintiffs applied to the Handelsgericht Wien (Commercial Court, Vienna) for an injunction prohibiting the defendant from providing its customers with access to the website kino.to if certain films belonging to the plaintiffs were made available to customers on that website, either in full or in the form of clips. The main claim was given concrete expression in a number of further claims, described as ‘requests in the alternative’ and not restrictive of the main claim, by examples of specific blocking measures (DNS blocking of the domain name, blockade of the website’s current IP address at any given time, the latter, should the need arise, only after notification by the plaintiffs).
13. The plaintiffs based their application on Paragraph 81(1a) of the UrhG and stated as their ground for it that the defendant was providing access to content made available illegally. The provision of the access should be prohibited. Specific measures should only be considered in the enforcement process. The defendant, on the other hand, argues that it has no relationship with the operators of the website kino.to and only provides its customers, who are not acting illegally, with access to the Internet. Moreover, a general blocking of access to a website is neither possible nor reasonable. The specific measures proposed, on the other hand, are disproportionate.
14. By order of 13 May 2011, the Handelsgericht Wien prohibited the defendant from providing its customers with access to kino.to if the films named by the plaintiffs were made available there, in particular by DNS blocking of the domain name and blocking of the defendant’s current IP addresses and any shown in future to belong to it. The court regarded it as established that both those measures could be taken without major expense but could very easily be circumvented. Nevertheless, they represented the most effective methods of preventing access. It was not established that kino.to shared its IP address with servers offering harmless content. Both parties lodged appeals against the order.
15. In June 2011, the website kino.to closed after the German prosecuting authorities took action against its operators.
16. The Oberlandesgericht Wien (Higher Regional Court, Vienna), sitting as the appellate court, amended the injunction of the court of first instance by order of 27 October 2011 to the effect that it prohibited the provision of access to kino.to without mentioning specific measures to be taken. Paragraph 81(1a) of the UrhG transposed Article 8(3) of Directive 2001/29 and was to be interpreted in conformity with EU law as referred to in recital 59 in the preamble to Directive 2001/29. The defendant was enabling its customers to access content made available illegally and was thus an intermediary within the meaning of the law, irrespective of whether its customers themselves acted illegally. The defendant was to be prohibited from interfering with the plaintiffs’ intellectual property in general, without mentioning specific measures. It would be required by the injunction to achieve an outcome (namely the prevention of interference with the intellectual property right). The choice of the means of achieving that outcome was a matter for the defendant, which must do everything that could possibly and reasonably be expected of it. Whether a particular measure called for to prevent the interference was disproportionate, as the defendant maintained, was to be reviewed only in the ‘enforcement process’, in which the question whether all reasonable measures had been taken or whether a breach of the injunction remained an issue would be examined.
17. The defendant appealed on a point of law against that decision to the Oberster Gerichtshof (Supreme Court) and seeks the dismissal of all the plaintiffs’ claims.
III – Reference for a preliminary ruling and procedure before the Court of Justice
18. The Oberster Gerichtshof stayed the proceedings and referred the following questions to the Court of Justice of the European Union for a preliminary ruling:
‘(1) Is Article 8(3) of Directive 2001/29 to be interpreted as meaning that a person who makes protected subject-matter available on the Internet without the rightholder’s consent (Article 3(2) of Directive 2001/29) is using the services of the access providers of persons seeking access to that protected subject-matter?
(2) If the answer to the first question is in the negative: Are reproduction for private use (Article 5(2)(b) of Directive 2001/29) and transient and incidental reproduction (Article 5(1) of Directive 2001/29) permissible only if the original of the reproduction was lawfully reproduced, distributed or made available to the public?
(3) If the answer to the first question or the second question is in the affirmative and an injunction is therefore to be issued against the user’s access provider in accordance with Article 8(3) of Directive 2001/29: Is it compatible with Union law, in particular with the necessary balance between the parties’ fundamental rights, to prohibit in general terms an access provider from allowing its customers access to a certain website (thus without ordering specific measures) as long as the material available on that website is provided exclusively or predominantly without the rightholder’s consent, if the access provider can avoid incurring coercive penalties for breach of the prohibition by showing that it has nevertheless taken all reasonable measures?
(4) If the answer to the third question is in the negative: Is it compatible with Union law, in particular with the necessary balance between the parties’ fundamental rights, to require an access provider to take specific measures to make it more difficult for its customers to access a website containing material that is made available unlawfully if those measures require not inconsiderable costs and can easily be circumvented without any special technical knowledge?’
19. The plaintiffs, the defendant, the Italian Republic, the Kingdom of the Netherlands, the Republic of Austria, the United Kingdom of Great Britain and Northern Ireland and the Commission submitted written observations.
20. At the hearing on 20 June 2013, the plaintiffs, the defendant, the Republic of Austria and the Commission presented oral argument.
IV – Legal assessment
A – Preliminary considerations and technical background
21. Few inventions have changed our habits and our media consumption as completely as that of the Internet. In the form familiar to us, the network, which is not yet 30 years old, (9) allows communication and data exchange worldwide. The new forms of communication have, within an extremely short space of time, become something which we take so much for granted that the United Nations Special Rapporteur on freedom of opinion and expression considers that the access to information that the Internet provides is essential in a democratic society. (10)
22. However, the new technologies also offer scope for abuse. That is particularly true in regard to the infringement of copyright on the Internet. Seldom does that involve such flagrant cases as the present. According to the plaintiffs, on the website kino.to, accessed daily by over four million users at times, over 130 000 film works were being offered for streaming or download without the rightholders’ consent. The website operators profited from their offer with advertising revenues of several million euros annually before the website could be shut down in June 2011 following investigations by the Dresden prosecuting authority which were triggered by a whistleblower. None of the parties considers the content of the website to be lawful, its operators having, on the contrary, already been prosecuted under criminal law in the Federal Republic of Germany for unauthorised exploitation on a commercial basis of works protected by copyright. (11)
23. Rightholders fight against such websites which engage in massive copyright infringement. However, the people behind the websites and the ISPs which give them access to the Internet often operate abroad outside Europe or conceal their identity. Rightholders therefore try to achieve their objective by applying for injunctions against ISPs in order to compel them to block the infringing content offered. There is lively debate in many Member States regarding the admissibility in law of such blocking injunctions against ISPs. (12)
24. The fact that blocking of websites by ISPs is not technically unproblematic contributes to the complexity of the debate. (13) In that regard, the referring court mentions in particular the possibility of an IP block and a DNS block.
25. IP addresses are numerical addresses which are assigned to devices interlinked on the Internet in order thus to enable them to communicate with one another. (14) In the case of a blockade by an ISP, requests are no longer forwarded to the blocked IP address by that ISP’s services. DNS (Domain Name System) blocks, on the other hand, concern domain names which are used instead of unwieldy IP addresses by users. DNS servers, which are operated by every ISP, ‘translate’ domain names into IP addresses. In the case of a DNS block, that translation is prevented. In addition to those two methods of blocking a website, an ISP’s entire Internet traffic can be routed through a proxy server and filtered. However, all those methods can be circumvented. (15) According to the findings of the referring court, users can easily access the infringing website even without any special technical knowledge. The operators of the infringing website can also make it available under a different address.
26. In Directive 2001/29, the EU legislature established special rules for the protection of copyright in the information society. In addition to harmonising the author’s rights and the reproduction right (Article 2), the right of communication to the public of works and the right of making available to the public other subject-matter (Article 3), the distribution right (Article 4) and the exceptions and limitations (Article 5), the directive also provides that Member States are to provide appropriate sanctions and remedies in respect of infringements of the rights and obligations set out in the directive, including, in particular, the possibility for the rightholder to be 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’ (Article 8, in particular Article 8(3)). Directive 2004/48 also requires Member States to provide for fair, equitable, effective, proportionate and dissuasive measures to ensure the enforcement of intellectual property rights (Article 3), including injunctions (Article 11).
27. At the same time, however, the legislature also reacted to the special significance of the infrastructure of the Internet and, in Articles 12 to 15 of Directive 2000/31, established rules on the liability of intermediary service providers in electronic commerce, which, according to recital 16 in the preamble to Directive 2001/29, are not affected either by Directive 2001/29 or, according to Article 2(3)(a) of Directive 2004/48, by Directive 2004/48 either. Despite those provisions, providers must in practice observe requirements which vary from one Member State to another when handling infringing content of which they are aware. (16)
28. Finally, the blocking of websites constitutes interference with a fundamental right and must also be examined from that point of view.
B – Admissibility
29. At first glance there could be doubt as to the admissibility of the present request for a preliminary ruling. The plaintiffs in the main proceedings are seeking an interim injunction intended to prohibit the defendant from providing access to a website which has no longer been accessible since as long ago as June 2011. To that extent, it may be doubted whether there is any need for legal redress.
30. The request for a preliminary ruling is admissible, however. In that respect, it should be borne in mind that the referring court is entitled, under Article 267 TFEU, to refer a question concerning the interpretation of EU law if it considers that a decision on the question is necessary to enable it to give judgment. According to the Court’s settled case-law, it is in principle for the national court before which the proceedings are pending to determine, having regard to the particular features of the case, the need for a preliminary ruling and the relevance of the questions which it refers to the Court. (17)
31. The Court derogates from that principle only if it is ‘quite obvious’ (18) that the interpretation of EU law is irrelevant to the pending case, the question referred is of a purely hypothetical nature (19) or indeed the dispute in the case at issue has been artificially created. (20)
32. According to the referring court, however, it is required to give its judgment on the basis of the factual position at the time of the decision at first instance, that is to say, at a time when the website at issue was still available. To that extent, a genuine dispute still exists, to which the questions referred are undoubtedly of relevance.
C – First question referred
33. The referring court wishes to know whether Article 8(3) of Directive 2001/29 is to be interpreted to the effect that the ISP of the person accessing a work infringing Article 3(2) of Directive 2001/29 can be regarded as an intermediary whose services are being ‘used’ by the copyright infringer.
34. If that is the case, an injunction pursuant to Article 8(3) of Directive 2001/29 can in fact also be issued against the ISP of the accessing Internet user and not only against that of the infringing website. In support of the lawfulness of such an injunction against that ISP, two lines of argument are, in theory, relevant, which form the background to the first two questions referred by the national court. Firstly — this is the reasoning behind the first question referred —, it could be argued that an injunction against the accessing user’s ISP is permissible since that ISP is an intermediary whose services are being used by the operator of the infringing website to infringe copyright. Secondly — this is the background against which the national court raises the second question referred —, such an injunction could however also be justified on the basis that the ISP’s customers accessing the infringing website are themselves acting illegally and thus the ISP’s services are being used by its own customers to infringe copyright, which again falls within the scope of the provision.
35. The plaintiffs, Italy, the Netherlands, the United Kingdom and the Commission take the view that a person who makes a protected work available on the Internet without the rightholder’s consent is using the services of the ISP of the person accessing the work. The referring court also inclines to that view. Only the defendant holds a different opinion.
36. I am also of the view that the user’s ISP must be regarded as an intermediary whose services are used by a third party to infringe copyright. That follows from the wording, context, spirit and purpose of the provision. Before I analyse the provision, the previous case-law should be summarised.
1. The Court’s previous case-law
37. The present case is not the first occasion on which the Court has been required to examine the role of an ISP as an intermediary whose ‘services are used by a third party to infringe a copyright’ within the meaning of Article 8(3) of Directive 2001/29.
38. In LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten, the Court held that ‘[a]ccess providers which merely provide users with Internet access, without offering other services such as email, FTP or file-sharing services or exercising any control, whether de jure or de facto, over the services which users make use of, must be regarded as “intermediaries” within the meaning of Article 8(3) of Directive 2001/29’. (21)
39. The Court’s reasoning to support this was that the ISP provides the customer with a service which is capable of being used by a third party for copyright infringement. That also follows from recital 59 in the preamble to Directive 2001/29, since the ISP, in granting access to the Internet, makes infringing activity possible. Finally, that conclusion also follows from the aim of the directive, which consists in particular in ensuring effective protection of copyright. (22) Unlike the present case, that case concerned ‘file-sharing systems’ in which the ISP’s users themselves also offer copyright-infringing works on the Internet.
40. The interpretation of Article 8(3) of Directive 2001/29 made in LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten was confirmed in the judgment in Scarlet Extended. There the Court further held that, under Article 8(3) of Directive 2001/29 and the third sentence of Article 11 of Directive 2004/48, holders of intellectual property rights may apply for an injunction against intermediaries, such as, for example, ISPs, aimed not only at bringing to an end infringements already committed, but also at preventing further infringements. (23)
41. According to the Court’s case-law, operators of online social networking platforms also fall under the concept of intermediary within the meaning of Article 8(3) of Directive 2001/29. (24)
42. In summary, it can therefore be stated that the case-law has already made it clear that ISPs may in principle be considered as ‘intermediaries whose services are used by a third party to infringe a copyright’ within the meaning of Article 8(3) of Directive 2001/29 and thus as addressees of the injunction mentioned in the provision. However, it still remains unclear, as the referring court correctly states, whether Article 8(3) of Directive 2001/29 also provides for an injunction against an ISP where the latter has granted Internet access, not to the copyright infringer itself, but only to the user accessing the infringing supply, that is to say, whether (in the words of the provision) the copyright-infringing supplier is using the services of the accessing user’s ISP to infringe copyright.
2. Interpretation of the provision
43. The defendant is of the view that such an ISP cannot be considered as an addressee of an injunction pursuant to Article 8(3) of Directive 2001/29 since, in the absence of any contractual relationship with the person infringing the copyright, that ISP has no possibility of exerting influence on him and the infringement is being committed by making the work available to the public without that ISP’s involvement. The ISP’s services are thus not being ‘used by a third party to infringe a copyright’ within the meaning of Article 8(3) of Directive 2001/29. Such a broad interpretation of the expression ‘are used’ would ultimately also include electricity suppliers, parcel services and others.
44. I am not persuaded by this argument. As already reiterated several times, in accordance with Article 8(3), an injunction must be available against intermediaries ‘whose services are used by a third party to infringe a copyright’. The provision does not, therefore, explicitly require there to be a contractual relationship between the intermediary and the person infringing the copyright. (25)
45. However, it is questionable whether the services of the ISP of the user accessing infringing information are also being ‘used’ to infringe copyright by the person who made that information available to the public and has thus infringed Article 3(2) of Directive 2001/29.
46. Here the referring court and the defendant express doubts, since the factual preconditions for the application of Article 3 of Directive 2001/29 are already met as soon as the operator of the copyright-infringing website has made the page available on the Internet via its ISP.
47. It is certainly true that, from the time of its activation via the website operator’s ISP, a website has already been ‘ma[de] available to the public … in such a way that members of the public may access [it] from a place and at a time individually chosen by them’ within the meaning of Article 3(2) of Directive 2001/29. However, that access is provided to the members of the public primarily by their own ISPs. Although it is true that a particular ISP could cease to exist without the website thereby ceasing to be available, as a collective the ISPs of Internet users are necessary in order for ‘making available to the public’ to be possible on the Internet. (26) The referring court correctly notes in this respect that making available only becomes factually relevant when access by Internet users becomes possible.
48. However, this means that, according to the wording of the provision, the services of the Internet user’s ISP are also used by the infringer to infringe copyright, (27) regardless of whether the infringer itself is in a contractual relationship with the ISP.
49. The context of the provision also supports that conclusion.
50. In this connection, reference must first be made to recital 59 in the preamble to Directive 2001/29, according to which ‘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. Therefore, without prejudice to any other sanctions and remedies available, rightholders should have the possibility of applying for an injunction against an intermediary who carries a third party’s infringement of a protected work or other subject-matter in a network’.
51. The recital makes it clear that intermediaries are regarded by Directive 2001/29 as the best possible addressees of measures to terminate copyright infringements, primarily because they carry data ‘in a network’. The wording makes it clear that this does not necessarily mean the first transmission of the data in a network, but also the further carrying in the network. This is even more clearly expressed in the English and Spanish versions of the directive: ‘who carries a third party’s infringement of a protected work … in a network’ and ‘que transmita por la red la infracción contra la obra … cometida por un tercero’. The ISPs of the accessing users are therefore also included as possible addressees of the injunction.
52. The liability rules for intermediaries, which are laid down in Directive 2000/31, do not, in principle, preclude the issuing of an injunction under Article 8(3) of Directive 2001/29 against ISPs. It is true that Article 12 of that directive contains special rules on the liability of intermediary service providers as mere conduits of information. However, under paragraph 3 of that provision, those rules do not affect the possibility for a court or administrative authority of requiring the service provider to terminate or prevent an infringement.
53. The possibility of issuing an injunction against an ISP is also contained in Directive 2004/48 which, in the third sentence of Article 11, also provides for injunctions against intermediaries whose services are used by a third party to infringe an intellectual property right.
54. A schematic interpretation therefore also supports the view that Article 8(3) of Directive 2001/29 includes ISPs as possible addressees of an injunction even if they are not the infringer’s ISP but ISPs of users accessing the copyright-infringing website.
c) Spirit and purpose
55. Finally, the spirit and purpose of the provision also supports an interpretation of Article 8(3) of Directive 2001/29 to the effect that the infringer uses the services of the accessing user’s ISP.
56. Such an interpretation accords with the legislature’s intention to ensure a high level of protection of copyright. (28) According to the legislature’s intention, a ‘rigorous, effective’ system for the protection of copyright is necessary to ensure European cultural creativity. (29)
57. Directive 2001/29 is intended to ensure that high level of protection precisely in the face of the challenges posed by the information society. (30) As is apparent from recital 59 in the preamble to Directive 2001/29, in the light of technical developments, the legislature saw the intermediary conveying the information as often the most appropriate person to act against infringing information. The example of a website placed online by an ISP located abroad outside Europe illustrates why the intermediary is seen by the legislature as being in such a key position. In such a case, the website and its operators often cannot be prosecuted. The intermediary remains as the appropriate starting point.
58. It is obvious that an intermediary who is not contractually linked to the copyright infringer can in no circumstances be held unconditionally responsible for the termination of the infringement. In the context of my proposals concerning the answers to the third and fourth questions referred, I shall make some remarks on conditions to be observed in that regard.
59. The answer to the first question referred is therefore that Article 8(3) of Directive 2001/29 must be interpreted as meaning that a person who makes protected subject-matter available on the Internet without the consent of the rightholder and thereby infringes rights under Article 3(2) of Directive 2001/29 uses the services of the ISPs of those persons who access that protected subject-matter. Since I am thus answering the first question referred in the affirmative, I shall proceed directly to my observations on the third question.
D – Third question referred
60. The third question stands out solely by its complexity in terms of its formulation. It links two elements. Thus, the referring court first asks whether it is compatible with EU law, and in particular with fundamental rights, to prohibit an ISP judicially in quite general terms under Article 8(3) of Directive 2001/29 from allowing its customers access to a particular website on which content is made available exclusively or predominantly without the consent of the rightholders. The referring court describes the injunction so formulated as an ‘outcome prohibition’ (‘Erfolgsverbot’), by which is meant that the addressee of the injunction must prevent a particular outcome (namely access to the website) without the measures to be taken for that purpose by the addressee of the injunction being specified. (31)
61. However, this question is couched — and this is the second element of the question — in particular procedural language. The ISP can avoid incurring coercive penalties for breach of the ‘outcome prohibition’ by showing that it has taken all reasonable steps to comply with it. The background to this element is found in the particular national rules for the issuing and enforcement of an injunction such as that described here by the referring court.
62. I shall first set out below the positions of the parties; then it would seem appropriate, for a better understanding, to summarise the national rules briefly and in simplified terms. Finally, the legal assessment of the question will follow.
1. The views of the parties
63. The parties have taken different positions on the question referred.
64. Italy, the Netherlands and the United Kingdom essentially consider it to be the task of the national courts to examine the nature of the injunction in the specific case in the light of certain requirements, in particular of the principle of proportionality and of a fair balance between the rights of the parties concerned. Italy and the Netherlands deal with the third and fourth questions referred together.
65. The plaintiffs and the Republic of Austria submit that an outcome prohibition, even in the specific procedural form in question, is compatible with EU law. The plaintiffs put forward as their basis for this view the interest in an effective legal remedy against copyright infringement and the technologically neutral approach of the case-law. There is no objection to the procedure, since the national courts had examined the proportionality, namely the question whether the website at issue made content available exclusively or predominantly without the rightholders’ consent, in the course of issuing the blocking injunction. The ISP must tolerate the uncertainty regarding the measures to be taken on account of the flagrant infringements involved and of the aim of openness to technology. The ISP’s justified interests are taken into account in the enforcement process. Austria also regards the procedure as admissible in the interests of effective legal protection in the case of massive copyright infringements, particularly as the ISP is in a better position than the rightholder to choose the correct blocking measure.
66. The defendant and the Commission submit that an outcome prohibition in the procedural form described is not permissible. In the view of the defendant, a general outcome prohibition does not meet the requirements laid down by the case-law in relation to Article 8(3) of Directive 2001/29. The ISP is not in a contractual relationship to the infringer. The outcome prohibition would burden the ISP unreasonably with the task of assessing which blocking measures are reasonable, given that wrong assessments involve risks of liability as regards the outcome prohibition or towards its customers. The Commission sees a breach of the principle of proportionality in the inability of the national court to undertake a review of proportionality for lack of knowledge of the scope of the necessary measures. The possibility of avoiding incurring coercive penalties is no substitute for a proper review of proportionality when an injunction is issued.
2. Austrian law
67. For a better understanding of, in particular, the procedural language in which the question raised by the referring court is couched, some observations on Austrian law appear to me to be appropriate. (32)
68. For the protection of absolute rights, that is to say, rights which can be enforced by the holder as against anyone, (33) Austrian law provides in principle for the possibility of granting an outcome prohibition. According to the defendant’s submissions, such an outcome prohibition is regularly imposed against the person directly interfering with an absolute right. It obliges the addressee to prevent a specific outcome from occurring. What means he uses to prevent the outcome is left to the addressee himself. Whether complete prevention of the outcome is possible at all and whether the measures necessary for that purpose take reasonable account of the parties’ fundamental rights is not examined before the outcome prohibition is issued. (34)
69. If the outcome to be prevented now occurs (that is to say, in the present case, a user gains access to the website), there is a breach of the outcome prohibition and a coercive penalty can be applied for (in the course of the enforcement process) against the defendant. (35) In that regard, according to the submissions of the Republic of Austria, the judgment creditor carries the burden of proof for the breach. Only now, in the course of the enforcement process, can the addressee of the outcome prohibition argue by bringing legal proceedings that he has taken all reasonable steps to comply with the outcome prohibition and thus avoid incurring a coercive penalty.
70. At first glance, it appears advantageous to examine the outcome prohibition and the particular procedural features separately in terms of their conformity with European law. However, the outcome prohibition in question here affords the possibility, subsequently in the enforcement process, of averting a coercive penalty. In that respect it constitutes (despite the particular procedural features which are formulated very disadvantageously for the ISP) a milder measure than a pure outcome prohibition. Disregarding the other particular procedural features, I shall examine below, as also formulated by the referring court, the outcome prohibition with a subsequent possibility of avoiding a penalty, in terms of its admissibility under European law.
3. Legal assessment
71. In my view, an outcome prohibition which does not specify the measures to be taken, issued against an ISP who is not contractually linked to the infringer, does not satisfy the requirements laid down by the case-law in relation to Article 8(3) of Directive 2001/29. The possibility of claiming in the subsequent enforcement process that the possible measures to comply with the prohibition are unreasonable does not protect such an outcome prohibition from the verdict that it is illegal under EU law.
72. In principle, the conditions and modalities for the injunctions for which the Member States must provide under Article 8(3) of Directive 2001/29, as well as the conditions to meet and procedure to be followed, are a matter for the national law of the Member States. This follows from recital 59 in the preamble to Directive 2001/29 and, in similar form, from recital 23 in the preamble to Directive 2004/48. (36)
73. However, the Member States are not completely at liberty to design the injunctions at their own discretion. On the contrary, those national rules, and likewise their application by the national courts, must observe the limitations arising from Directives 2001/29 and 2004/48 and from the sources of law to which those directives refer. (37) Regard must always be had to the fundamental rights under Article 51(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 6 TEU.
74. I shall examine in detail below three of those restrictions on the Member States’ discretion and consider them in the sequence applied in the case-law cited: the interpretation of the directive with a view to an effective pursuit of its objectives, Article 15(1) of Directive 2000/31, and fundamental rights. The measure to be examined here fails in regard to the latter.
a) Effective protection of copyright
75. The first consideration to be borne in mind is that Directive 2001/29 must be interpreted in such a way that the objective pursued by it, that is, effective legal protection of copyright (Article 1(1)), may be achieved. (38) Thus, sanctions as provided for in Article 8(1) must be ‘effective, proportionate and dissuasive’. (39) In addition, pursuant to Article 3 of Directive 2004/48, measures, procedures and remedies to enforce the intellectual property rights covered must be fair, equitable, effective, proportionate, dissuasive and not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays and be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse. It follows from this inter alia that, as the Court has already held, Member States must take measures which contribute, not only to bringing to an end infringements already committed, but also to preventing further infringements. (40)
76. On the other hand, and as already indicated by the requirements of proportionality, fairness and equity, the measures must strike a fair balance between the various rights and interests of the parties, as the Court has repeatedly held, beginning with the Promusicae case. (41)
b) Article 15(1) of Directive 2000/31
77. Article 15(1) of Directive 2000/31, under which Member States are not to impose a general obligation on ISPs to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity, must also be complied with. Pursuant to recital 16 in the preamble to Directive 2001/29 and Article 2(3)(a) of Directive 2004/48 (Article 15(1)), that provision remains unaffected by those directives. (42)
78. It would constitute such an inadmissible measure if the court had ordered the ISP actively to seek copies of the infringing page among other domain names or to filter all the data carried in its network in order to ascertain whether they constitute transfers of specific protected film works and to block such transfers. However, such a measure is not in issue in the present case. Rather, the referring court is required to decide on the blocking of a specific website. The measure therefore does not infringe Article 15(1) of Directive 2000/31.
c) Fundamental rights
79. The measure to be examined does however infringe the requirements relating to fundamental rights which, in accordance with the case-law, (43) are to be applied to injunctions pursuant to Article 8(3) of Directive 2001/29. In this respect, the measure is neither ‘fair and equitable’ nor ‘proportionate’ within the meaning of Article 3 of Directive 2004/48.
80. Fundamental rights, which now, pursuant to Article 6(1) TEU, are guaranteed in the Charter with the same legal value as the Treaties, apply to the Member States when implementing EU law. The Member States are therefore obliged, when adopting regulations pursuant to Article 8(3) of Directive 2001/29, to observe the fundamental rights guaranteed in the Charter. In particular, the national courts must also observe those rights. (44)
81. In the present case it must, on the one hand, be borne in mind that an injunction pursuant to Article 8(3) of Directive 2001/29 is intended to protect copyright. The protection of intellectual property is guaranteed as a fundamental right by Article 17(2) of the Charter. (45) According to the Court’s case-law, however, that right is not inviolable and for that reason is not absolutely protected. Instead, the protection of the fundamental right to property, which also includes intellectual property, must be balanced against the protection of other fundamental rights, in order thus, in the context of measures adopted to protect copyright holders, to strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures. (46)
82. So far as concerns the ISP, against which a measure under Article 8(3) of the directive is being adopted, a restriction of freedom of expression and information (Article 11 of the Charter) must first be examined. Although it is true that, in substance, the expressions of opinion and information in question are those of the ISP’s customers, the ISP can nevertheless rely on that fundamental right by virtue of its function of publishing its customers’ expressions of opinion and providing them with information. (47) It must be ensured in that regard that the blocking measure does actually affect infringing material and that there is no danger of blocking access to lawful material. (48)
83. According to the case-law, regard must also be had, in particular, to the ISP’s freedom to conduct a business, which is protected by Article 16 of the Charter. (49)
84. In this regard, according to the case-law, a fair balance is to be struck between the protection of those rights enforceable by the ISP and the intellectual property right. (50)
85. No such balance can be said to exist in the case of an outcome prohibition not specifying the measures to be taken, which is issued against an ISP.
86. As I have already mentioned at the beginning, there are a number of measures which can be considered for the purpose of blocking a website, that is to say, for possible compliance with the outcome prohibition. They include highly complex methods, such as diverting Internet traffic through a proxy server, but also measures which are less difficult to implement. The measures thus differ significantly as regards the degree to which they interfere with the fundamental rights of the ISP. Moreover, it is not inconceivable that full compliance with the outcome prohibition is impossible from a purely practical point of view.
87. As I have already observed, however, the outcome prohibition at issue in the present case is not a pure outcome prohibition but an outcome prohibition in which the addressee of the prohibition can claim, by bringing proceedings in the subsequent enforcement process, that he has taken all reasonable steps to comply with the outcome prohibition. The question arises whether that downstream opportunity for the addressee of the outcome prohibition to defend itself strikes the necessary balance.
88. That is not the case. In logical terms alone, such a ‘restoration’ of the necessary balance is excluded. According to the case-law, the balance between the fundamental rights must be observed when the injunction is issued. In this case it is expressly not being observed; instead many considerations relevant to fundamental rights will only be examined at a later stage. That is in breach of the rule that a balance is to be struck between the rights of the parties under Article 8(3) of Directive 2001/29.
89. An examination of the ISP’s situation also shows that no balance between the fundamental rights is struck by that procedural opportunity. The ISP must suffer the issuing of an injunction against it, from which it is not apparent what measures it is required to take. If, in the interest of its customers’ freedom of information, it decides on a mild blocking measure, it must fear a coercive penalty in the enforcement process. If it decides on a more severe blocking measure, it must fear a dispute with its customers. The reference to a possible opportunity to defend itself in the enforcement process does not in any way alter the ISP’s dilemma. It is true that the originator can rightly refer to the danger of massive infringement of its rights by the website. However, in cases like the present, the ISP has no connection with the operators of the copyright-infringing website and has itself not infringed the copyright. To that extent, the measure to be examined cannot be said to strike a fair balance between the rights of the parties.
90. In the light of all the foregoing, the answer to the third question referred must be that it is not compatible with the necessary balance to be struck under Article 8(3) of Directive 2001/29 between the fundamental rights of the parties to prohibit an ISP, in quite general terms and without ordering specific measures, from allowing its customers access to a particular copyright-infringing website. This also applies if the ISP can avoid incurring coercive penalties for breach of that prohibition by showing that it has taken all reasonable steps to comply with the prohibition.
E – Fourth question referred
91. Once the referring court has dealt in the third question referred with the admissibility of a general outcome prohibition, its fourth question deals with specific blocking measures. The court asks whether ordering an ISP to take specific measures to make it more difficult for customers to access a website with content made available illegally is consistent with a balancing of the parties’ fundamental rights, in particular if the measures entail not inconsiderable costs and can also easily be circumvented without any special technical knowledge. In that regard, the referring court seeks only to be given guidelines for assessing the proportionality of specific blocking measures, since the facts of the case have not yet been definitively clarified in that respect.
92. Only the defendant is of the view that the ordering of specific blocking measures in the aforementioned circumstances is not compatible with the parties’ fundamental rights. The plaintiffs, the Italian Republic, the Kingdom of the Netherlands, the Republic of Austria, the United Kingdom of Great Britain and Northern Ireland and the Commission consider that such a specific blocking measure is not precluded in principle and give, in part, detailed particulars regarding the guidelines to be followed by national courts.
93. I also am of the view that a specific blocking injunction is not precluded in the circumstances referred to.
94. As already set out, the Court has laid down detailed guidelines for the examination of Article 8(3) of Directive 2001/29. One of the guidelines to be followed by national authorities and courts is that those bodies must strike a fair balance between the protection of the intellectual property right enjoyed by the holders of copyrights and the protection of the legal positions as regards fundamental rights of the ISP. The latter can, as stated above, rely in particular on the freedom of economic operators to conduct a business pursuant to Article 16 of the Charter and on freedom of expression and information (Article 11 of the Charter). According to the latter, in particular, no protected information may be covered by an access block. The referring court’s question concerns the costs of the specific blocking measures to be taken by the ISP and the possibility of circumventing blocks. The referring court is thus expressly aiming at the review of proportionality. The aforementioned considerations are of relevance to the examination of both fundamental rights. In addition, Article 3(2) of Directive 2004/48 also requires that legal remedies for the enforcement of the intellectual property rights be proportionate. To avoid repetition, I shall confine my account below to Article 16 of the Charter, particularly since the referring court has not referred any questions concerning freedom of expression and information.
95. In Scarlet Extended and Sabam, the Court classified the injunction requiring an ISP to install a complicated, costly and permanent filtering system at its own expense in order to monitor data in its network as a serious infringement of the ISP’s freedom to conduct its business. (51) A specific blocking measure involving not inconsiderable costs may admittedly constitute a lesser interference, but its aim and effect are nevertheless to restrict the right and it thus constitutes an intrusion into the sphere of protection (52) of the right. (53)
96. However, according to the Court’s case-law, the freedom to conduct a business is not absolute, but must be viewed in relation to its social function and — including in the light of the wording of Article 16 of the Charter — is subject to interventions on the part of public authorities which ‘may limit the exercise of economic activity in the public interest’. (54)
97. The requirements to be met in that regard are those of Article 52(1) of the Charter, according to which, inter alia, regard must be had to any limitations provided for by law and to observance of the principle of proportionality. I have already set out my views on limitations provided for by law in my Opinion in Scarlet Extended. (55) In the light of the wording of the question referred, I think it appropriate to confine my observations in the present case to proportionality.
98. According to the Court’s settled case-law, for the observance of the principle of proportionality, measures adopted by Member States must ‘not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued’. (56) In substance, that corresponds to the rule in Article 52(1) of the Charter, under which limitations must be necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
99. The injunctions in question, by protecting copyright and thus the ‘rights of others’ within the meaning of Article 52(1) of the Charter, undoubtedly pursue a legitimate aim. However, it is questionable whether they are appropriate for the furtherance of the aim, that is to say, make a contribution to the attainment of the aim. (57) Doubts in this regard arise from the findings of the referring court, according to which blocking measures ‘can easily be circumvented without any special technical knowledge’. Thus, on the one hand, the Internet users can circumvent the blocking measure without major difficulty and, on the other, the operators of the copyright-infringing website can provide the page in identical form under a different IP address and domain name.
100. In my view, however, those considerations are not sufficient for every specific blocking measure to be described as inappropriate. This applies first to the possibilities of circumvention by users. It is true that potentially many users may be in a position to circumvent a block. However, it by no means follows from this that every one of those users will actually circumvent it. Users who learn, as a result of a website’s being blocked, that the page is illegal may well forgo access to the website. To presume an intention of the part of every user to gain access to a website despite a block would, in my view, mean that one assumes inadmissibly that every user intends to further a breach of the law. Finally, it should be observed that, while it is true that quite a few users may be in a position to circumvent a block, far from all users would be in such a position.
101. Similarly, the possibility that the operator may provide the page in identical form under a different IP address and domain name does not, in principle, preclude the appropriateness of blocking measures. Firstly, here too, users, having had their attention drawn by the blocking measure to the illegality of the content, may forgo visiting the page. Secondly, users will have to resort to search engines in order to find the page. With repeated blocking measures, even a search via search engines will be difficult.
102. In the light of all the foregoing, a blocking injunction mentioning the specific blocking measure to be taken is not, in general, inappropriate for the purpose of furthering the aim of protecting the originator’s rights.
2. Necessity and proportionality
103. The measure ordered must also not go beyond what is necessary to achieve the objective, (58) and, of several appropriate measures, recourse must be had to the least onerous. (59) Finally, the disadvantages caused by the measure must not be disproportionate to the aim pursued. (60)
104. It is the task of the national court to examine those requirements in relation to the measure envisaged in the specific case. Having regard both to the division of functions of the courts in the relationship of cooperation between the Court of Justice and the courts of the Member States and to the incomplete clarification of the facts and lack of particulars regarding the specific measure in the present case, it is neither appropriate nor possible to undertake a full examination of the necessity and proportionality here. Rather, the national court can only be provided with a few considerations. Moreover, these by no means constitute an exhaustive list of the factors to be weighed. Rather, the national court must fully weigh up all the relevant facts and circumstances of the specific case.
105. The first point to note in this regard is that the possibility of circumventing a blocking injunction which has been issued does not, in principle, preclude every blocking injunction. I have already stated the reasons for this under the section on appropriateness. The quantitative assessment of the foreseeable success of the blocking measure is one factor to be weighed.
106. According to the Court’s case-law, the complexity, costs and duration of the measure must also be weighed together with the other factors. (61) In that regard, it must be borne in mind that the blocking measure in question will very probably not be a one-off blocking measure against the defendant. Rather, the court weighing these factors must assume that it may be a test case and in future numerous similar cases against every ISP may be dealt with before the national courts, so that numerous similar blocking injunctions may arise in future. Should a specific measure prove to be disproportionate in that regard in view of its complexity, costs and duration, it must be considered whether proportionality can be established by a partial or full assumption of the cost burden by the rightholder.
107. On the part of the plaintiffs, it must be borne in mind that the rightholder must not be rendered unprotected from a website massively infringing its rights. On the other hand, however, in cases such as the present, it should be noted that the ISP is not in a contractual relationship with the operator of the copyright-infringing website. As a consequence of that particular factual situation, a claim against the ISP is, admittedly, not completely out of the question, but the originator must, as a matter of priority, so far as is possible, claim directly against the operators of the illegal website or their ISP.
108. Finally, it must be borne in mind that Article 16 of the Charter protects commercial activity. A blocking injunction is, in that respect, not proportionate in any case if it jeopardises an ISP’s business activity as such, that is, the commercial activity of making Internet access available. To that extent, an ISP can also rely on the social importance of its activity. As I have already stated in my introductory reflections, the access to information afforded by the Internet is today considered essential in a democratic society. The European Court of Human Rights (‘the ECHR’) has stated in that regard that a comparative law survey of twenty Council of Europe member states reveals that the right to Internet access is protected in theory by the constitutional guarantees applicable to freedom of expression and freedom to receive ideas and information. (62) In the view of the ECHR, the Internet plays an important role in enhancing access to news and facilitating the dissemination of information. (63)
109. In the light of all the foregoing, the answer to the fourth question referred must be that a specific blocking measure relating to a specific website, which is imposed on an ISP pursuant to Article 8(3) of Directive 2001/29, is not, in principle, disproportionate solely because it entails not inconsiderable costs but can easily be circumvented without any special technical knowledge. It is for the national courts, in a specific case, taking into account all relevant circumstances, to weigh the fundamental rights of the parties against one another and thus strike a fair balance between those fundamental rights.
V – Conclusion
110. On the basis of the reasons presented above, I propose that the Court should answer the questions referred by the Oberster Gerichtshof as follows:
(1) Article 8(3) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted to the effect that a person who makes protected subject-matter available on the Internet without the consent of the rightholder and thus infringes rights under Article 3(2) of Directive 2001/29 uses the services of the ISPs of those persons who access that protected subject-matter.
(2) It is not compatible with the weighing of the fundamental rights of the parties that is necessary under Article 8(3) of Directive 2001/29 to prohibit an ISP, in quite general terms and without ordering specific measures, from allowing its customers access to a particular copyright-infringing website. This applies even if the ISP can avoid incurring coercive penalties for breach of that prohibition by showing that it has taken all reasonable steps to comply with the prohibition.
(3) A specific blocking measure relating to a specific website, which is imposed on an ISP pursuant to Article 8(3) of Directive 2001/29, is not, in principle, disproportionate solely because it entails not inconsiderable costs but can easily be circumvented without any special technical knowledge. It is for the national courts, in a specific case, taking into account all relevant circumstances, to weigh the fundamental rights of the parties against each other and thus strike a fair balance between those fundamental rights.