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New Paper: Privately Litigated Disconnecting Injunctions

July 18, 2014

Martin Husovec and I have just finished a paper titled Privately litigated disconnecting injunctions, which is available at the ssrn website. It deals with a particular type of injunctions that rights holders might apply for against intermediaries on the basis of Art. 8(3) of the InfoSoc Directive, which consist of enjoining an ISP from providing internet access to one of its users, allegedly engaging in copyright infringement. A case already decided in Spain granting the disconnecting injunction serves us as a study case to assess the problems this type of injunctions face. We deal particularly with the serious problems these injunctions raise regarding their compatibility with the EU Charter of Fundamental Rights.

We conclude as follows:

Privately litigated disconnecting injunctions requiring ISPs to cease providing internet access to one of its subscribers raise serious concerns from the standpoint of their compatibility with the EU Charter of Fundamental Rights and the European Convention of Human Rights. For these injunctions to be compatible with the Charter and the Convention, they should respect a number of key requirements. First, as discussed in Part III(1), the concerned individual should be granted the opportunity to defend his or her rights in court. To this end, the plaintiffs would need to previously identify that user, so that he or she could be included in the lawsuit. Second, as shown in Part III(2), some injunctions, particularly those without time limits, those targeting all national ISPs, or blocking also legitimate communications, might qualify as a criminal sanction and hence be unavailable due to the requirement of a stricter legal basis for criminal charges. Third, as explored in Part III(3), the test of proportionality seems difficult to be complied with. At the very least, the injunction should be narrowly tailored and show a sufficient degree of effectiveness. Moreover, not only courts, but also Member States themselves are limited by the Charter in the discretion they enjoy with regards to the way of implementing Art. 8(3) InfoSoc Directive. Whether they provide for disconnections against intermediaries as an administrative or judicial instrument of injunctive nature, Union law is implemented and thus also EU Charter constrains their actions. These problems make it extremely complicated that these injunctions are granted if courts, as they must, demand that the injunction applied for complies with the principles enshrined in the Charter and the Convention. In any event, obtaining such an injunction would be costly and slow for the plaintiff, and the outcome would hardly be effective in bringing to an end the user’s infringing activity. While some right holders may be inclined to explore this injunctions on the basis of the national transpositions of Art. 8(3) InfoSoc Directive, it seems unlikely that this form of relieve may end up being an attractive and effective tool to curb online infringement.

Any comment or suggestion will be welcome!

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