In his Opinion of 26 November 2013 (not yet available in English) Advocate General Cruz Villalón has taken the position that the Internet Service Provider (“ISP”) of the user of a website infringing copyright should be considered to be an “intermediary” under Directive 2001/29 and, as such, can be ordered to block access to the website for its clients.

The Austrian Supreme Court referred questions regarding the legality of orders to block access in the context of a dispute between two film production companies on the one hand, Constantin Film Verleih and Wega Filmproduktionsgesellschaft, and UPC Telekabel Wien, a major Internet provider in Austria, on the other.  The website kino.to allowed users to stream or download films for which Constantin Film and Wega hold the rights, without their consent.  The two companies sought an injunction prohibiting UPC Telekabel from allowing its customers to access kino.to.  The injunction was granted but without setting out specific measures to be taken by the ISP.

The main question referred is whether the ISP which enables users of an illegal website to access Internet must be considered to be an “intermediary” (i.e., its “services are used by a third party to infringe a copyright or related right”) such that an injunction could require them to block access to these websites.  It is clear from previous EU cases that ISPs providing internet access to users infringing copyright are intermediaries within the meaning of Article 8(3) of the 2001/29 Directive as “ [a]ccess providers who merely enable clients to access the Internet, even without offering other services or exercising any control, whether de iure or de facto, over the services which users make use of, provide a service capable of being used by a third party to infringe a copyright or related right, inasmuch as those access providers supply the user with the connection enabling him to infringe such rights.”  In his Opinion the Advocate General proposed, relying on the wording, context and purpose of the Directive, that the ISP used by a user of an illegal website should also be considered to be an intermediary.

However, he took the view that a general prohibition on ISPs allowing their customers to access particular websites, without specifying the measures to be taken, is incompatible with the balance of fundamental rights of the parties.  Any such order must set out specific blocking measures, which must strike a fair balance between the parties’ fundamental rights.  Specific blocking measures are not, in principle, disproportionate.  However, the mere fact that a measure may impose “not inconsiderable” costs for ISPs and can be easily circumvented by users does not make it disproportionate.

Although the Advocate General provided some guidance regarding appropriate blocking orders, it remains a matter for the national courts to determine the most appropriate measures to address daily copyright infringement on the Internet.  As an aside, the Advocate General noted that claims should be made against the operators of illegal websites or their ISPs before users’ ISPs.