Dr. Bartosz Sujecki

In an recent decision, the Court of Appeal in The Hague overruled the website blocking order which was issued by the District Court of The Hague in a procedure between the internet service providers and BREIN, the Dutch Association of the Entertainment Industry, concerning the website of The Pirate Bay.

In 2012, Brein obtained a court order against two Dutch internet service providers, XS4ALL and Ziggo. In this court order, the two companies were demanded to block the access to the website of Pirate Bay. The Pirate Bay is an internet platform where users can exchange files, like movies or music.
 
In its decision, given on 28 January 2014, the Court of Appeal in The Hague overruled the decision of the District Court in The Hague. Even though the Court of Appeal in The Hague held that a significant number of subscribers of the internet service providers use the Pirate Bay website to up- and download files via this website, the Court stated that the creation of the availability to provide such services cannot be qualified as a infringement of a copyright. For the motivation of its findings the Court of Appeal in The Hague used article 11 of the Enforcement-Directive (Directive 2004/48/EC) and article 8 par. 3 of the Copyright Directive (Directive 2001/29/EC). Therefore, the internet service providers do not infringe the copyrights of the Dutch entertainment industry represented by BREIN.

Additionally, the internet service providers claimed that the blocking of the website of the Pirate Bay is not proportionate and not effective. Their argumentation was based on reports made by the Dutch Organization for Applied Scientific Research (TNO). In these reports TNO states that subscribers are able to avoid the blocking of the Pirate Bay website. The Court of Appeal of The Hague has hollowed this argumentation and concluded that blocking of the Pirate Bay website is not effective in consideration to the subscribers of the internet service providers. Besides this, such a blocking violates the freedom of entrepreneurship of the internet service providers as it violates their freedom to act in accordance with their own will. Such a measure therefore violates the principle of proportionality according to the Court of Appeal of the Hague. This decision is the first decision in the case of BREIN against a number of internet service providers. The appeal of the other two service providers, UPC and KPN, will be dealt with in a separate procedure. However, it would be surprising if the result would be different.

This decision is reasonable. Even though the way Pirate Bay works forms an infringement of copyrights, a measure such as blocking of the website constitutes a very far reaching measure. Therefore, it should be proportionate. Additionally, it has to be taken into consideration that according to the E-Commerce Directive (Directive 2000/31/EC) the liability of the internet service providers is very limited.
 

Dr. Bartosz Sujecki
Boels Zanders Advocaten
T: +31 88 304 0263
E: sujecki@boelszanders.nl