The Role of Human Rights in Copyright Enforcement Online: Elaborating a Legal Framework for Website Blocking
I. INTRODUCTIONOver the past few years, intellectual property (IP) enforcement by ordering Internet access providers to block infringing websites has been rapidly evolving in Europe. The practice is increasing since going after direct infringers has proven to be "heavy handed, disproportionate, and ineffective,"1 whereas targeting the website operators is not an easy task either, as these often run their services from another jurisdiction,2 easily change location3 or conceal identity.4 As a result, injunctions against Internet access providers often remain the most efficient option left to the right holders.in the European union, the legal basis of such injunctions rests on Article 8(3) InfoSoc.5 According to this article, "Member States shall ensure that right holders 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." An almost identical provision, but with regards to all intellectual property rights, is enshrined in the third sentence of Article 11 of the Enforcement Directive.6 in addition, Article 12(3) of the E Commerce Directive7 provides that the so called "mere conduit" liability exemption that would normally apply to internet access providers8 "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." Analogously, Recital 45 of the ECommerce Directive states the following:The limitations of the liability of intermediary service providers established in this Directive do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or administrative authorities requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it.9At the same time, Article 15 of the E Commerce prohibits the general monitoring obligation.10Even though authorized in principle by the European legislator, blocking injunctions have also proven problematic with regard to fundamental rights enshrined in the European legal order, such as the users' right of access to information and the Internet service providers' ability to freely conduct their business. As noted by the European Commission in its 2007 impact assessment, "the adoption of blocking measures necessarily implies a restriction of human rights and therefore, it can only be imposed by law, subject to the principle of proportionality, with respect to the legitimate aims pursued and to their necessity in a democratic society "11 A uniform approach towards achieving proportionality in website blocking is, however, currently lacking in Europe. inasmuch as the InfoSoc Directive left "[t]he conditions and modalities relating to such injunctions to the national law of the Member States,"12 blocking practices vary significantly across Europe. This generates further discrepancies in the case law, "leav[ing] much to be desired in terms of human rights"13 and overall level of harmonization.14As a response to this situation of legal uncertainty, two major European courts the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have recently provided some guidance on the fundamental rights balancing in cases of website blocking on the grounds of copyright infringement.15 The point of departure has been two landmark decisions of these courts, which thus need to be briefly presented: the so called UPC Telekabel judgment of the CJEU and the Akdeniz v. Turkey decision of the ECtHR.UPC TelekabelThe case before the CJEU, UPC Telekabel,16 involved a major Austrian internet access provider that was ordered, at the request of two film production companies, to block access of its customers to the website kino.to, offering the films of the companies for streaming or download without the right holders' consent.