The Attorney General of the Court of Justice Cruz Villalón has rendered an opinion regarding the compatibility of web-blocking measures with EU law. This opinion is expected to warm-up the never-ending debate how to tackle piracy in the internet. In fact, in several European countries web-blocking is imposed on ISPs (Internet access providers) as an ordinary measure to prevent illicit activities by Internet users in different areas, such as online piracy, paedoporno material, counterfeiting, consumer protection, ecc.
While various European decisions have already considered the matter of online copyright enforcement (in particular, the famous SABAM cases originating from Belgium), this is the first time the ECJ is dealing specifically with web-blocking.
It is arguable whether the opinion of the Attorney General may be seen as a step in favor of copyright holders or, by contrast, in favor ISP/libertarians/consumers. Such evaluation may vary because web-blocking practices throughout UE vary considerably from country to country and therefore the views of the Attorney General, should they be confirmed by the ECJ, may have different implications.
On one side, rights-holders will welcome the fact that opinion recognizes that the web-blocking instrument is not per se incompatible with European law; on the other side, however, the restrictions and guarantees indicated in the opinion suggest that practical enforcement of web-blocking will become more difficult in the future, at least in the European countries where such instruments are largely used (especially in Italy).
In nuts, the European officer believes that, under certain conditions, European law allows – but it does not prescribe – national courts to force ISPs to block access to websites to help rights holders to fight against online piracy. However, the national courts should take care of the following:
- the blocking measure must be balanced and take into account primary interests of other parties, such as fundamental rights, freedom of expressions, privacy, freedom of business ecc.;
- the blocking measure must be specific, i.e. cannot prescribe a general outcome such as obliging ISPs to guarantee that access to a certain website will be disabled;
- the measure must be proportionate, i.e. should not prescribe more than what is necessary to achieve a certain objective;
- the blocking measure must be imposed by a court or should be subject to strict judicial review.
As stated above, the conditions envisaged by the Attorney General are quite strict and, if approved by the European court, will force various members States to review their tolerance to web-blocking. To make an example:
- the Attorney General stresses that fact that web-blocking is subject to law reservation and should be pursued and reviewed by courts. This means that Member States wishing to easily delegate such activity to an administration should re-think their plans (this is for instance the case of the Italian copyright enforcement reform);
- since important rights like freedom of speech, privacy, freedom of business ecc must be guaranteed, some national judges my come to the conclusions, in the concrete circumstances, that web-blocking is an excessive and inadequate measure; I believe that DPI (deep packet inspection) will not be tolerated by national courts;
- courts can neither impose general web-blocking measures nor an “result obligation”: in other words, the web-blocking decision should specifically indicate the technological measures to be undertaken, it cannot consist in a just an order to block access to a certain website, leaving to the ISPs the liability about the effectiviness of the adopted measure.