According to Advocate General Cruz Villalón an internet provider can be
required to block access by its customers to a website which infringes copyright
Such a court injunction must refer to specific blocking measures and
achieve an appropriate balance between the opposing interests which are
protected by fundamental rights
According to EU law, Member States are to ensure that copyright holders or
holders of related rights are able to apply for an injunction against
intermediaries whose services are used by a third party to infringe their
It is already established that internet providers can in principle be
regarded as intermediaries and therefore as persons against which such
injunctions, which are aimed at bringing to an end infringements already
committed and at preventing further infringements, can be granted.
In practice, the operators of illegal websites and the internet providers
which make them available online are frequently based outside Europe or conceal
their identity, making it difficult to pursue them before the courts.
The Austrian Oberster Gerichtshof (Supreme Court) seeks to ascertain from the
Court of Justice whether a provider which provides internet access only to users
of an illegal website is to be regarded as an intermediary in that sense, that
is to say as an intermediary whose services are used by a third party – such as
the operator of an illegal website – to infringe copyright, meaning that an
injunction can also be granted against it.
It also seeks clarification of the EU rules on the content and procedure for
the issuing of such an injunction.
The Oberster Gerichtshof is called upon to decide at third instance in
respect of a legal dispute between UPC Telekabel Wien, a major Austrian internet
provider, on the one hand, and Constantin Film Verleih and Wega
Filmproduktionsgesellschaft, on the other.
On application by Constantin Film and Wega, the courts at first and second
instance granted an interim injunction – in the case of the appellate court
without mentioning specific measures to be taken – prohibiting UPC from allowing
its customers to access kino.to.
By accessing that website, users were able to view by streaming or to
download films the rights in respect of which are held inter alia by Constantin
Film and Wega, without their consent.
UPC has no legal relationship with the operators of the website and made
neither internet access nor storage space available to them.
According to the findings of the Oberster Gerichtshof, it can, however, be
assumed with near certainty that individual UPC customers availed themselves of
the kino.to offer.
In his Opinion today, Advocate General Pedro Cruz Villalón takes the view
that the internet provider of the user of a website which infringes copyright is
also to be regarded as an intermediary whose services are used by a third party
– that is the operator of the website - to infringe copyright and therefore also
as a person against whom an injunction can be granted.
That is apparent from the wording, context, spirit and purpose of the
provision of EU law.
The Advocate General is also of the view that it is incompatible with the
weighing of the fundamental rights of the parties to prohibit an internet
service provider generally and without ordering specific measures from allowing
its customers to access a particular website that infringes copyright.
That also applies where the provider can avoid incurring a penalty for breach
of that prohibition by showing that it has taken all reasonable steps to comply
with the prohibition.
Advocate General Cruz Villalón underlines in that connection that the
provider of the user has no connection with the operators of the website that
infringes copyright and has not itself infringed the copyright.
However, a specific blocking measure imposed on a provider relating to a
specific website is not, in principle, disproportionate only because it entails
not inconsiderable costs but can easily be circumvented without any special
It is for the national courts, in the particular 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
When weighing the fundamental rights it must however be taken into account
that in future action could be taken in numerous similar cases against any
provider before the national courts.
Advocate General Cruz Villalón also points out that rightholders must, in so
far as possible, claim directly against the operators of the illegal website or
The Advocate General’s Opinion is not binding on the Court of Justice.
It is the role of the Advocates General to propose to the Court, in complete
independence, a legal solution to the cases for which they are responsible.
The Judges of the Court are now beginning their deliberations in this case.
Judgment will be given at a later date.
A reference for a preliminary ruling allows the courts and tribunals of the
Member States, in disputes which have been brought before them, to refer
questions to the Court of Justice about the interpretation of European Union law
or the validity of a European Union act.
The Court of Justice does not decide the dispute itself.
It is for the national court or tribunal to dispose of the case in accordance
with the Court’s decision, which is similarly binding on other national courts
or tribunals before which a similar issue is raised.