Blocking Orders: Assessing Tensions with Human Rights

Abstract

Over the past few years, injunctions against Internet access providers requiring them to block access to copyright-infringing websites have been on the rise in Europe. This type of injunctions is popular because going after direct infringers has proven to be ineffective and disproportionate, whereas targeting the website operators is not an easy task either, as they often run their services from another jurisdiction, easily change location or conceal identity. Despite popularity of website blocking injunctions, the legal standards applicable to them remain to a great extent undefined. This uncertainty might be increased with regard to the additional enforcement obligations that the adopted Directive on Copyright in the Digital Single Market imposes on online intermediaries. This chapter tries to clarify the legal criteria for website blocking from the perspective of three fundamental rights that play a major role in website blocking cases. The freedom of expression framework for copyright enforcement and the progressive concept of user rights that has being construed under it is analysed first (I). The chapter then proceeds to discuss the limits of intermediaries’ involvement in digital enforcement mandated by the EU-specific freedom to conduct a business (II). The required efficacy of the blocking resulting from the human right to property framework for IP merits a separate examination (III). Finally, potential effects on the website blocking practices of the recent EU copyright reform are discussed (IV). The chapter concludes that despite this new legislation, courts at EU and national level will continue to play a central role in balancing the interests at stake through the principle of proportionality and that further guidance for the judiciary on how to use competing fundamental rights in this context should be developed.

Keywords: freedom of expression, website blocking, users rights, EU Copyright Reform