Website blocking: Efficient means of combating online piracy in the EU?

January 4, 2018 Leave a comment
Stopping commercial copyright infringements on the internet is often difficult. Only rarely can the operators of such offers be identified, even taking hold of the hosting providers regularly fails. Thus, as a last resort, access providers can be compelled to block users from accessing websites offering illegal content.

Such a procedure is not an automatic process; EU and German law impose considerable legal obstacles to website blocking. First and foremost, right holders must try to hold the operator or the host provider responsible. However, if the action against these other participants fails or is past hope, affected right holders can obtain blocking orders against access providers.

When to consider blocking

According to case law of the ECJ, blocking measures must be strictly target-oriented. In particular, they must not limit internet users accessing legitimate content. However, this does not mean that only websites containing illegal information can be blocked.

It is clear that even in the case of mixed content right holders can obtain a blockage. In such cases, the German Federal Supreme Court demands a thorough consideration of the total ratio of legal to illegal content. If only a negligible amount of legal content is concerned, blocking all content is basically possible.

What are the legal requirements?

First of all, the right holder must try to take action against the provider of the infringing content. All means must be taken to find out the operator’s identity. For example, case law demands that a private investigator, other service providers or investigative authorities be consulted for inquiries and investigations.
If this fails and actions taken against the host provider were futile, providers can request access providers to block the content.

In Germany, the existing German Federal Court of Justice has so far always rejected requests for website blocking orders, but this was based on specific circumstances of the individual cases. As a general principle, the legal way to obtain blocking orders is open. However, legal disputes are still to be expected in the future in order to clarify the exact conditions under which such orders may be granted.

What do access providers need to do?

According to the German Federal Court of Justice, website blocking can be implemented via three technical methods – a DNS block, an IP block or a URL block by using a ‘forced proxy’. The court has not attached significance to the fact that DNS blocks can be easily bypassed by the user. IP blocks, on the other hand, go much further by changing routing tables, and URL blocks on the provider side work using deep packet inspection. In both cases, however, the German Federal Court of Justice does not consider the scope of protection of telecommunications secrecy under Article 10 (1) of the Basic Law (Constitution; ‘Grundgesetz’) to be affected. From a legal point of view, these procedures could therefore be a possible route for the implementation of effective access blocking.

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Konstantin Ewald

Konstantin Ewald

Partner at Osborne Clarke
Konstantin Ewald is a Partner and Head of Digital Business at Osborne Clarke, Germany. He advises leaders in the digital media and software industry throughout Europe and the US on all matters of digital media and IT law as well as IP/technology-related transactions.

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