[x-pubpol] A Greek premiere: Greek ISPs ordered to block access to infringing websites

Wed Nov 21 23:29:57 PST 2012

http://kluwercopyrightblog.com/2012/11/21/a-greek-premiere-greek-isps-ordered-to-block-access-to-infringing-websites/

Posted: 21 Nov 2012 06:42 AM PST
 *by Tatiana Sinodinou *

Department of Law, University of
Cyprus<http://www.ucy.ac.cy/goto/law/en-US/GeneralInformation.aspx>

* <http://kluwercopyrightblog.com/files/2011/12/Tatiana-Sinodinou.gif>"This
finding could have been considered predictable, if it wasn't for  a special
provision in the Greek Constitution that safeguards participation in the
information society."*

Is obliging ISPs to cut off internet access to specific copyright
infringing websites compatible with the Greek Constitution? That is one of
the main questions that were answered by the ruling of the District Court
of Athens of May 16th, 2012.

Even if it is just a response in a demand for injunctions, this decision is
important for two reasons. First, it places Greek jurisdiction among other
jurisdictions that decided to impose specific technological measures on  a
website that hosts or offers copyright infringing content. Second, it is
undoubtedly a sign of maturation of Greek case law with regard to copyright
protection on the Internet.

Indeed, with a few exceptions, the great majority of Greek copyright case
law has been mainly focused on classic legal questions, such as public
performance in hotel rooms, equitable remuneration and the question of
originality. As regards the application of copyright in the field of new
technologies, the case law has mainly dealt with software and database
protection issues. But even in the decisions regarding copyright
infringements via the internet, Greek judges have consistently shown a
perplexity in front of legal questions related to technology (see for
example the decision 8084/2009 of the District Court of Athens and the
decision 965/2010 of the three-member Misdemeanours Court of Kilkis (1),
which both lack a meticulous analysis of the legal questions which have
been raised).

The facts of the present case are rather common. Two internet sites, both
hosted in foreign countries, offer their subscribers a great number of
various works protected by copyright without authorization. Greek
collecting societies, representing both the authors and the holders of
related rights, asked for injunctions, demanding, among others provisional
measures, the imposition of technological measures by the Greek ISPs in
order to make these sites inaccessible to the Greek public. The legal basis
for this demand has been article 64A of Law 2121/1993 which implemented
article 8 par. 3 of the Information Society Directive. According to article
64A, "Rightholders may apply for an injunction against intermediaries whose
services are used by a third party to infringe a copyright or related
right. It is the same for the sui generis right of data base maker". This
has been the first time a Greek court has been asked to apply this
provision.

The importance of this provision for Greek copyright law is much higher
than it is for other jurisdictions, as Greek law does not allow collecting
and processing IP addresses for reasons that relate to copyright
protection. Indeed, there is no legal ground for lifting the
confidentiality of communications for copyright violations, including IP
addresses, which are considered as external elements of the communication
(see article 5 of Directive 2002/58 of 12 July 2002 concerning the
processing of personal data and the protection of privacy in the electronic
communications sector). Therefore, the role of intermediaries in the fight
against on-line copyright infringements is crucial.

The Court responded positively to the demand.  A first prerequisite has
been the inclusion of ISPs in the concept of "intermediaries" in article 64
A of Law 2121/1993. With regard to this specific point, the Court has
closely followed the Court of Justice of European Union (CJUE)'s case law
and more particularly the decision of 19th February 2009 in the case
LSG-Gesellschaft v. Leistungsschutzrechten v.  Tele2 Telecomunication Gmbh,
(C-557/07 <http://curia.europa.eu/juris/liste.jsf?language=nl&num=C-557/07>),
that said that "access providers which merely provide users with Internet
access, without offering other services such as email, FTP or file-sharing
services or exercising any control, whether de iure or de facto, over the
services which users make use of, must be regarded as 'intermediaries'
within the meaning of Article 8(3) of Directive 2001/29". After confirming
that ISPs are considered as intermediaries, the Court ordered the Greek
ISPs to block Internet access to the infringing websites.

This finding could have been considered predictable, if it wasn't for  a
special provision in the Greek Constitution (article 5 A) that safeguards
participation in the information society. In that context, the question had
to be asked while taking into consideration the balancing of copyright
protection and this particular provision. Undeniably, this is one of the
most interesting parts of the ruling.

According to the Court, the constitutional right of participation to
information society comprises, among others, the right of citizens to claim
access to the infrastructures of the information society. Therefore,
technological interventions that result in the interruption of internet
access or in the degradation of services shall, in principle, be considered
as contrary to the Greek Constitution, regardless if they derive from
private initiatives or are made pursuant to judicial decisions or laws. The
right to participate in the information society is broad and covers also
p2p networks which are considered as vital elements of the information
society infrastructures, let alone that are also used for lawful purposes.
Consequently, in the opinion of the Court, the degradation or the
interruption of access to p2p infrastructures shall be considered as
contrary to the Greek Constitution. Similarly, based on an interpretation
of the Greek Consumer Protection Act (Law 2251/1994) under the light of the
constitutional protection of the right to participate in the information
society, contractual terms between ISPs and their subscribers which entitle
the ISPs to the interruption or the termination of access to services of
the information society shall be considered as abusive. In the same vein,
the Court also rejects the possibility of imposing a general obligation of
monitoring to ISPs as contrary to article 15 of the E-commerce Directive.
Equally, the Court, by making an direct reference to the established case
law of the CJUE (CJUE, 24 November 2011, Scarlet v. SABAM, C-70/10 and
CJUE, 16 February 2012, SABAM v. Netlog , C-
360/10<http://curia.europa.eu/juris/liste.jsf?language=nl&num=C-360/10>)
(2), denies the legitimacy of the obligation for ISPs to apply general
filtering schemes to monitor all content preventively and indefinitely at
the expenses of the ISPs, as a an unfair measure which violates both
fundamental rights and the acquis communautaire .

The question of blocking access to specific web pages or websites had to be
evaluated in a different way. The key concept for this assessment is the
principle of proportionality, which is also guaranteed expressly by the
Greek Constitution (article 25). In order to decide whether the imposition
to ISPs of the obligation to interrupt access to the infringing sites is an
appropriate, necessary and proportionate technological measure, the Court
examines the technological, financial and the legal consequences
extensively. As the Court states, obliging ISPs to terminate the access to
a specific IP address or/and a specific domain name is an appropriate
technological measure, since it is effective and easily achievable (it
simply requires from ISPs to add a few lines of source code) without having
any negative impacts on the functioning of the Internet generally and to
the equipment or the functioning of ISPs in particular (e.g. speed access,
delay response, available bandwidth) or to other websites (the two
infringing websites do not share the same Internet address with other
websites). Moreover, with regard to the element of proportionality in a
narrow sense, the proposed technological measures are necessary and
reasonable in relation to their purpose, because they are capable of
terminating the access of Greek users who are installed in Greece to
specific IPs and/or websites. The proposed measures are also adequate and
effective, since they restrict access to all content and services of the
infringing website, while the technical process of circumventing them is
generally unknown to the average Internet user.

Nonetheless, in order to oblige ISPs to terminate access to the specific
websites, the Court must initially arrive to the conclusion that these
websites infringe copyright. The Court accepts this finding altogether for
both websites, without developing a detailed legal qualification of the
infringing acts in each separate case. This is undoubtedly justified by the
provisional nature of the measures asked by the claimants (procedure for
injunctions). The Court could have been, nevertheless, more analytical also
as regards this part of its 60 pages long decision.

While uploading and hosting copyright infringing content to a website by
the website's owners is a clear act of primary copyright infringement,
affirming copyright infringement when the website is providing links to
other infringing websites (such as megaupload.com or rapidshare.com), that
host copyright protected works that have been uploaded by the owners of the
linking website or/and its subscribers, presupposes a more comprehensive
legal scrutiny. In this case, the website functions mostly as a forum where
the subscribers have access to links pointing directly to the works and,
consequently, the unauthorized reproduction of the work takes place only
when the user chooses to activate the link.

The Court could have analyzed more thoroughly the role of the creator of
the links who cannot be considered as the primary infringer in case the
work is offered to tend users via downloading, but possibly only when the
work can be accessed via streaming. The legal situation is much more
complicated if we have a look to the disperse case law in this area (See
for example the decision of the German Federal Court of Justice in the
"Paperboy" case (2003): linking does not violate the right of making
available. See also the decision of the Court of appeals of Barcelona in
the "SGAE/Indice Web" case (2011): providing a link to potentially
copyright infringing content that could be downloaded with P2P software
does not imply making available the protected work). However, the website
that contains the links could be considered to be a secondary infringer,
since it provides the necessary means for copyright infringement by its
subscribers (on the condition that its owners have actual knowledge or they
are aware of the manifestly infringing nature of the referred website and
content, a fact that cannot be doubted in the circumstances of the present
case). In other words: it facilitates and authorizes copyright infringement
by enabling its subscribers to find and access the digital files containing
the works to the host location. This is not clarified in the decision and
that is regrettable, since this case could have at least introduced the
vivid and captivating discussion about the liability of creators of links
for copyright infringement in Greek case law. The Court emphasized only the
recognition of the significance of the role of the ISPs in the copyright
infringement. This role is considered essential since their services are
deemed necessary for the accomplishment of the infringement in the case of
both websites. Another point of the case which shall require further
qualification is the legal qualification of the role of the
users/subscribers of this website, who upload the infringing content to the
hosting sites that could be described as file-sharing social networks.
Therefore, as it seems, we have to wait the next steps to this judicial
procedure, since this case just opens the debate for the role of ISPs and
further the liability of intermediaries in the Greek copyright legal
landscape.

(1) See this earlier
blogpost<http://kluwercopyrightblog.com/2011/03/08/greece-no-criminal-liability-for-copyright-infringement-by-a-greek-website-providing-links-to-copyrighted-material/>:
Tatiana Sinodinou, Greece : No criminal liability for copyright
infringement by a Greek website providing links to copyrighted material.

(2) See this earlier
blogpost<http://kluwercopyrightblog.com/2012/02/20/sabam-v-netlog-cjeu-c-36010-as-expected>:
Philippe Laurent : SABAM v. Netlog (CJEU C 360/10) ... as expected!

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