SSRN Id3848063

WEBSITE BLOCKING INJUNCTIONS IN FLUX: STATIC, DYNAMIC, AND LIVE
by
Giancarlo Frosio and Oleksandr Bulayenko1
This article provides an overview of the legal framework that applies to website
blocking injunctions in Europe. It highlights how enforcement tools constantly adapt to
changes in infringement practices by expanding the arsenal of injunctions made
available to rightholders. This adaptation occurs on different levels via legislative,
judicial, administrative and soft law developments with the introduction of new
measures that guarantee more prompt and efficient responses to infringement threats.
From static, responses have increasingly become dynamic and live, to meet novel
forms of infringement online, such as illegal broadcasting of live (sports) events.
However, promptness and efficacy of enforcement responses often fit poorly with
fundamental rights protection and proportionality of measures.
1. INTRODUCTION
In Europe, website blocking is a popular tool to contrast online copyright and IP
infringement. 2 The InfoSoc Directive and the IPRED make available blocking
injunction as a remedy to protect IPR throughout the EU,3 although these measures
1Giancarlo Frosio is an Associate Professor at the Center for International Intellectual Property
Studies (CEIPI), University of Strasbourg, Non-resident Fellow at Stanford Law School CIS, Stanford
University; Faculty Associate at Nexa Center, Polytechnic and University of Turin; Oleksandr
Bulayenko is a Researcher and Education & Scientific Coordinator at the CEIPI and Associated
Researcher at the Institute for Information Law (IViR), University of Amsterdam. This article is based
on background research included in Giancarlo Frosio and Oleksandr Bulayenko, Study on Dynamic
Blocking Injunctions, commissioned by the European Intellectual Property Office (EUIPO 2021).
2 An increasing amount of literature have been discussing this legal phenomenon in recent times. See
eg Frederick Mostert and Jane Lambert, Study on IP Enforcement Measures, Especially Anti-Piracy
Measures in the Digital Environment, WIPO/ACE/14/7 (2019); Jaani Riordan, ‘Website Blocking
Injunctions Under United Kingdom and European Law’, in Graeme Dinwoodie (ed), Secondary
Liability of Internet Service Providers (Springer 2017) 275; Martin Husovec, Injunctions Against
Intermediaries in the European Union: Accountable But not Liable? (CUP 2017); Martin Husovec and
Lisa Van Dongen, ‘Website Blocking, Injunctions and Beyond: View on the Harmonization from the
Netherlands’ (2017) 7 GRUR Int’l 580; Saulius Kalėda, ‘The Role of the Principle of Effective Judicial
Protection in Relation to Website Blocking Injunctions’ (2017) 8 JPITEC 216; Christophe Geiger and
Elena Izyumenko, ‘The Role of Human Rights in Copyright Enforcement Online: Elaborating a Legal
Framework for Website Blocking’ (2016) 32(1) American U Int’l L Rev 43; Joost Poort and others,
‘Baywatch: Two Approaches to Measure the Effects of Blocking Access to The Pirate Bay’ (2014)
Telecommunications Policy 9; Pekka Savola, ‘Proportionality of Website Blocking: Internet
Connectivity Providers as Copyright Enforcers’ (2014) 5(2) JIPITEC 116; Martin Husovec, ‘Injunctions
against Innocent Third Parties: The Case of Website Blocking’ (2013) 4(2) JIPITEC 116.
3 See Directive (EC) 2004/48 of the European Parliament and of the Council of 29 April 2004 on the
enforcement of intellectual property rights (2004) OJ L 157, 45–86 (‘Enforcement Directive’ or
‘IPRED’), art 11; Directive (EC) 2001/29 of the European Parliament and of the Council of 22 May
2001 on the harmonisation of certain aspects of copyright and related rights in the information society
(2001) OJ L 167, 10–19 (‘Information Society Directive’ or ‘InfoSoc Directive’), art 8(3).
1
Electronic copy available at: https://ssrn.com/abstract=3848063
are not implemented and applied in a uniform manner among the Member States.4
To address ever-evolving online infringement threats, static blocking injunctions have
been coupled by the availability of forward-looking or dynamic blocking injunctions
(DBI) and live blocking injunctions, both in Europe and other jurisdictions.5 While the
availability of static blocking injunctions is uncontested in the large majority of
European countries,6 dynamic and live blocking injunctions are not always available
everywhere, with high variance of scope and requirements among jurisdictions. In
the following pages, this Article will discuss the conditions under which static,
dynamic, and live blocking injunctions are available in Europe, while also highlighting
negative effects on fundamental rights and the proportionality standards that
injunctions must meet for being validly issued.
2. BRIEF TAXONOMICAL AND TECHNICAL REFERENCES

The term 7 ‘blocking injunction’ refers to ‘an order requiring an internet
intermediary to implement technical measures directed at preventing or disabling
access to a specific internet location’.8 A second category of blocking orders is also
available: so-called forward-looking or dynamic blocking injunctions, which are
meant to allow flexibility so as to cover repeated infringements and, thus, enhance
the effectiveness of the measures for rightholders.9 The Commission’s Guidance on
the IPRED defines dynamic blocking injunctions as ‘injunctions which can be issued,
for example, in cases in which materially the same website becomes available
immediately after issuing the injunction with a different IP address or URL, and which
are drafted in a way that makes it possible to also cover the new IP address or URL,
without the need for a new judicial procedure to obtain a new injunction’. 10 A third
category of blocking orders, or more appropriately a sub-category of dynamic
blocking injunctions, goes under the name of ‘live’ blocking orders, which allow the
repeated blocking of a site every time a live broadcast is in process. Live blocking
allows for new servers to be identified by the rightsholder and notified to access
4 See, for a detailed comparative analysis of differences, including availability of measures, scope,
required and admissible evidence, and follow-up measures, Frosio and Bulayenko (n 1) 14-62.
5See, for references and overview of DBI practices in international jurisdictions, Frosio and
Bulayenko (n 1) 15-16.
6
A residual number of countries, such as Czech Republic, Poland and Slovakia do not yet provide for any
static or dynamic blocking injunctions, or at least no measure has been obtained in court yet.
7 See, for more taxonomical references and clarifications, Frosio and Bulayenko (n 1) 16-17, n 20.
8 Jaani Riordan, The Liability of Internet Intermediaries (OUP 2016) 461.
9See eg Berdien B.E. van der Donk, ‘How dynamic is a dynamic injunction? An analysis of the
characteristics and the permissible scope of dynamic injunctions under European Law after CJEU C-
18/18 (Glawischnig-Piesczek)’ (2020) 15 JIPLP 602–616.
10Communication from the Commission to the European Parliament, the Council and the European
Economic and Social Committee, Guidance on certain aspects of Directive 2004/48/EC of the
European Parliament and of the Council on the enforcement of Intellectual Property Rights, COM
(2017) 708 final (the ‘Guidance’) p. 21.
2
providers for blocking and ensures that old servers are not blocked after the end of a
certain time.11
There are several available mechanisms to address blocking of illegal content and
implement Internet site-blocking injunctions, including IP address blocking, Domain
Name System (DNS) blocking, Uniform Resource Locator (URL) filtering, deep
packet inspection, domain name-related measures, and ingress and egress
filtering.12 Whether specified or not by the injunction,13 both IP addresses and DNS
blocking are the most common technical solutions applied by blocking injunctions in
European jurisdictions. Often, DNS blocking alone is the most common or the only
used technical solution.
3. SOURCES OF BLOCKING INJUNCTIONS

3.1. The EU legislation
Blocking injunctions find their legal basis in multiple EU provisions. First, Article
18(1) of the ECD instructs Member States to ensure the availability of court actions
against information society services’ activities to terminate any alleged infringement
and prevent further impairment of interest involved.14 Meanwhile, the ECD also limits
the scope of its liability exemptions (mere conduit, hosting and caching) by providing
that the exemptions ‘shall not affect the possibility for a court or administrative
authority, in accordance with Member States' legal systems, of requiring the service
provider to terminate or prevent an infringement, nor does it affect the possibility for
Member States of establishing procedures governing the removal or disabling of
access to information’.15 The ECD, thus, makes it possible for MS to make available
blocking orders, both issued by judicial and administrative authorities, and confirms
their consistency with EU law. However, a positive obligation to provide injunctions
and legal redress to rightholders for IPR infringement within an EU law framework
comes, instead, from the InfoSoc Directive. The InfoSoc Directive clarifies that the
11See, e.g., Nedim Malovic, ‘The Evolution of Copyright Website Blocking In the UK: Live Blocking
Orders’ (2018) 40(12) EIPR 810-814.
12See Sebastian Schwemer, Tobias Mahler and Håkon Styri, Legal analysis of the intermediary
service providers of non-hosting nature (European Commission, July 2020) 23-26. See also Jan
Bernd Nordemann, ‘Website Blocking under EU Copyright Law’ in Eleonora Rosati (ed.), The
Routledge Handbook of EU Copyright Law (Routledge 2021) 359-361.
13 See eg Amsterdam Court of Appeal, BREIN v. Ziggo and Xs4all, 2 June 2020,
ECLI:NL:GHAMS:2020:1421 (‘Ziggo et al’) (where the technical solutions to block The Pirate Bay
have been specified). See also, on national judicial trend in specifying the measure to adopt, Frosio
and Bulayenko (n 1) 49.
14 Directive (EC) 2000/31 of the European Parliament and of the Council of 8 June 2000 on certain
legal aspects of information society services, in particular electronic commerce, in the Internal Market
(2000) OJ L 178, 1–16 (‘E-Commerce Directive' or ‘ECD’), art 18(1). See also IPRED, Article 11
(providing that ‘Member States shall ensure that, where a judicial decision is taken finding an
infringement of an intellectual property right, the judicial authorities may issue against the infringer an
injunction aimed at prohibiting the continuation of the infringement’).
15 ibid., Art. 14(3).
3
availability of these injunctions is made necessary by the fact that ‘in the digital
environment, in particular, the services of intermediaries may increasingly be used
by third parties for infringing activities. In many cases, such intermediaries are best
placed to bring such infringing activities to an end’. 16 Thus, the InfoSoc Directive
provides that ‘Member States shall ensure that rightholders are in a position to apply
for an injunction against intermediaries whose services are used by a third party to
infringe a copyright or related right’.17 The limited copyright scope of the injunctions
is, then, extended to IPR enforcement at large by the IPRED, which provides that
‘Member States shall also ensure that rightholders are in a position to apply for an
injunction against intermediaries whose services are used by a third party to infringe
an intellectual property right, without prejudice to Article 8(3) of Directive
2001/29/EC’.18
Some provisions in the recently proposed Digital Service Act (‘DSA’) might also
serve to harmonize the notion of injunctions against providers of digital or
intermediary services. First, the DSA states that providers of intermediary services,
including also access providers who are the target of blocking injunctions, 19 must
specify to the issuing judicial or administrative authority the action taken and the
moment it was taken, when receiving an order to act against illegal content. 20
Second, the orders should be harmonised by including, inter alia, (i) a statement of
reasons explaining why the information is illegal content under the law and (ii) one or
more exact uniform resource locators and, where necessary, additional information
enabling the identification of the illegal content, and (iii) information about redress
available to the intermediary service and the provider of the content.21 Finally, the
DSA sets up a system of national Digital Service Coordinators and providers that ‘the
Digital Services Coordinator from the Member State of the judicial or administrative
authority issuing the order shall, without undue delay, transmit a copy […] to all other
Digital Services Coordinators’.22
3.2. The jurisprudence of the CJEU

Whilst conditions for and modalities of blocking injunctions are a matter of national
law, the scope of these injunctions, and in particular whether blocking orders are
compatible with EU law, has been confirmed by the CJEU through a number of
decisions. First, the CJEU confirms that the notion of ‘intermediary’ is broad, in
particular, encompassing, which is relevant for our purposes, (Internet) access
16 InfoSoc Directive (n 3) Recital 59.

17 ibid art 8(3).
18 IPRED (n 3) art 11.
19See Proposal of the European Parliament and of the Council on a Single Market for Digital Services
(Digital Service Act) and amending Directive 2000/31/EC, 15 December 2020, COM(2020) 825, Art.
2(f).
20 ibid art 8(1).
21 ibid art 8(2)(a).
22 ibid art 8(3).
4
service providers.23 In justifying this construction of the notion of intermediaries, the
CJEU explains that ‘given that the internet service provider is an inevitable actor in
any transmission of an infringement over the internet between one of its customers
and a third party, since, in granting access to the network, it makes that transmission
possible [ . . . ], it must be held that an internet service provider [ . . . ] is an
intermediary whose services are used to infringe a copyright or related right within
the meaning of Article 8(3) of [the InfoSoc] Directive 2001/29”. 24 In general, the
CJEU clarifies that for an economic operator to be considered as ‘intermediary’, it is
sufficient that they provide inter alia a service capable of being used to infringe IPRs.
Second, in Mc Fadden, the CJEU clarifies that the mere conduit exemption ex
Article 12(1) of the ECD does not preclude a person from claiming injunctive relief
from an access provider against the continuation of an infringement occurring
through that access provider’s network.25 Thus, injunctions must be available in MS
to order an access provider to prevent continuation of the infringement, which implies
that copyright holders can seek injunctions to stop future infringements, given that
such injunctions respect the balance between the interests at stake and protect
fundamental rights.26
Third, the CJEU makes clear that blocking orders would fall within the scope of
Art. 8(3) InfoSoc Directive and Art. 11 IPRED. 27 Besides general compatibility of
blocking injunctions with EU law, UPC Telekabel also clarifies that blanket
injunctions are compliant with EU law. 28 The CJEU was called to answer the
questions whether blocking injunctions should be an obligation of means or an
obligation of results. Confirming the latter construction of blocking injunctions, the
CJEU spelled out the availability under EU law of blocking injunctions that just
instruct on the blocking of a certain website without specifying the technical means
that should be deployed by the access providers to block access to the relevant
infringing content. Thus, access providers might be liable for non-compliance with
the blocking orders regardless of any consideration of the technicalities involved in
reaching the result prescribed by the order. However, technical aspects might be
considered as part of the balancing of rights that the court should undertake before
issuing the injunction, while reviewing whether the actions required from the access
providers are reasonable and proportionate.29
23 Cf. Nordemann (n 12) 362-363.

24 C-314/12, UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega
Filmproducktionsgesellschaft mbH, 27 March 2014, ECLI:EU:C:2014:192 (‘UPC Telekabel’) para. 32.
25See C 484/14, Tobias Mc Fadden v Sony Music Entertainment Germany Gmbh, 15 September
2016, ECLI:EU:C:2016:689 (‘Mc Fadden’), para 79.
26 ibid., 101.
27UPC Telekabel (n 24) para 40. See also C-610/15 Stichting Brein v Ziggo BV and XS4All Internet
BV [2017] ECLI:EU:C:2017:456 (ordering the Dutch access providers Ziggo and XS4All to block the
torrent search engine ThePirateBay).
28 See UPC Telekabel (n 24) para 64.
29
See infra s 6.
5
Finally, reaching this conclusion, UPC Telekabel also plays a relevant role in
potentially supporting the availability under EU law of dynamic blocking injunctions,
which are in fact broader injunctions that impose an obligation of results via the
blocking of identical or equivalent websites with different IP addresses or URLs,
rather than a narrower obligation of using specific technical means to block a specific
IP address or URL.30 In addition, the availability of dynamic blocking injunctions is
apparently confirmed by the CJEU in L’Oréal, when stating that injunctions ex Art. 11
of the IPRED must be available ‘to take measures which contribute, not only to
bringing to an end infringements of those rights by users of that marketplace, but
also to preventing further infringements of that kind’. 31 Although discussing
injunctions in the framework of the activities of a hosting provider such as eBay, by
concluding that injunctions may be aimed at repressing existing infringements and
also preventing further infringements, the CJEU confirms that a dynamic scope of
injunctions would be compatible with EU law. This conclusion can be applied mutatis
mutandis to dynamic blocking of infringing websites by access providers. The
Commission has stated that ‘whilst this issue is not expressly addressed in IPRED,
the Commission considers that, under the condition that necessary safeguards are
provided for, such injunctions can be an effective means to prevent the continuation
of an IPR infringement’.32
3.3. Administrative Orders

In line with the provision in Art. 14(3) of the ECD, some European jurisdictions
have adopted enforcement models in which administrative authorities are also
competent to issue website blocking orders, as in the case of Greece, Italy,
Lithuania, and Spain. 33 The following administrative authorities are competent to
order blocking injunctions: (i) the Committee for the Notification of Copyright and
30 In this context, the conclusions of C-18/18, Eva Glawischnig-Piesczek v. Facebook Ireland Ltd,
2019, ECLI:EU:C:2019:821 (hereafter ‘Glawischnig-Piesczek’) might also be applied by analogy. In
Glawischnig-Piesczek, the CJEU has broadened the scope of monitoring ‘in a specific case’ with
reference to content identified as illegal by national courts as in the case of a defamatory comment
posted by an anonymous Facebook user. In this case, a platform like Facebook might be requested to
block and remove identical content and content with equivalent meaning; however, the elements of
equivalent information should be specifically identified in the injunction and the DSP should not carry
out any independent assessment of the content. Thus, an argument can be made that blocking
injunction can be applied dynamically to identic or equivalent websites and content to be blocked as
long as no independent assessment must be carried out by the access provider subject to the
blocking order. See also OGH 30.03.2020, ORF/Facebook, 4Ob36 / 20b [4.1]-[4.5] (Austria) (applying
Glawischnig-Piesczek and concluding that, for an injunction to be lawful under EU law, content similar
in its core should be identifiable ‘at first glance’ or determined by ‘technical means’ which would not
impose excessive control obligations on Facebook).
31C-324/09, L’Oréal SA and Others v eBay International AG and Others, 2011, ECLI:EU:C:2011:474
(hereafter ‘L’Oréal’), para. 144. See also C-494/15, Tommy Hilfiger Licensing LLC v Delta Center,
2016, ECLI:EU:C:2016:528.
32 Guidance (n 10) 21.
33See Alessandro Cogo and Marco Ricolfi, ‘Administrative Enforcement of Copyright Infringement in
Europe’ in Giancarlo Frosio (ed), The Oxford Handbook of Online Intermediary Liability (OUP 2020)
586-602.
6
Related Rights Infringement on the Internet (ΕDPPI)34 (Greece); (ii) the Autorità per
le Garanzie nelle Comunicazioni (AGCOM) (Italy); (iii) the Radio and Television
Commission of Lithuania 35 (Lithuania); (iv) Comisión de Propiedad Intelectual,
Sección Segunda (Spain).36 Italy has endorsed this model first by empowering the
AGCOM, the Italian Communication Authority, to deal with online copyright
enforcement, including the power of issuing blocking orders.37 In particular, at the
end of a procedure that occurs online, if the AGCOM decision-making body is
satisfied that the alleged infringement has occurred, when the infringing website is
hosted outside Italy, it can order mere conduit (Internet) service providers to block
access to the website. 38 This has led to more than 700 domain names being
blacklisted, according to data from 2019, 39 a number that will be growing faster,
given that the 2018 amended Regulation enables AGCOM to adopt dynamic
blocking orders.40 Customarily, use of the administrative procedure does not prevent
filing of civil or criminal actions before ordinary courts, depending on the jurisdiction.
Administrative courts are of course also entitled to review the decision of the
administrative bodies.
3.4. Soft law

‘Soft law’ arrangements such as codes of conduct (‘CoC’) or voluntary measures
have been established in several European jurisdictions. In Denmark and the UK,
self-regulatory measures were established between stakeholders. In Denmark, the
most notable arrangement is the ‘Code of Conduct for handling decisions on
blocking access to services infringing intellectual property rights. Entered between
the Telecommunications Industry (TI) and the Rights Alliance’.41 There is a voluntary
CoC in place between the major search engines that operate in the UK, including
Google, Bing and Yahoo, and other relevant stakeholders for demoting copyright-
infringing websites. In Belgium, a general CoC adhered to by members of the
Internet Service Providers Association (ISPA) Belgium sets up a central contact point
within the judicial police to receive complaints about illegal activity on the Internet,
34 See Law 2121/1993, Art. 66E.

35 See Law on Copyright and Related Rights, Article 78.
36 See Spanish Copyright Act, Article 195.
37See Regolamento in materia di tutela del diritto d'autore sulle reti di comunicazione elettronica e
procedure attuative ai sensi del decreto legislativo 9 aprile 2003, n. 70 (‘AGCOM Regulation’),
38 ibid art 8, para 4.
39 Cogo and Ricolfi (n 33) 607.
40 AGCOM, Delibera n. 490/18/CONS, Modifiche al Regolamento in materia di tutela del diritto
d’autore sulle reti di comunicazione elettronica e procedure attuative ai sensi del decreto legislativo 9
aprile 2003, n. 70, di cui alla delibera n. 680/13/CONS <www.shorturl.at/lpsIM> (providing, inter alia,
that the Directorate for Media Services, on request from the rightholder, can extend the effects of an
already issued blocking order if it deems that the violation denounced is actually the same). See also
Cogo and Ricolfi (n 33) 607, n 142.
41 The recent revised version of the CoC is dated 18 May 2020 and is available at:
https://rettighedsalliancen.dk/ (in Danish).
7
including copyright infringement. 42 Meanwhile, German Internet access providers
and rights holders have set up an independent “Internet Copyright Clearing House”
under a jointly agreed CoC that provides that the access to so-called ‘structurally
copyright-infringing websites’ can now be blocked out of court upon recommendation
of the clearing house43 if the Federal Network Agency has no concerns under the EU
Net Neutrality Regulation. 44 Structurally infringing websites are websites whose
business model is geared towards mass copyright infringements. In Finland, there is
a voluntary mechanism to block foreign websites, but its scope is limited to child
pornography. The Finnish police maintains a record of foreign child pornography
websites, which ISPs may use to prevent access to these websites. 45 A specific
regulatory framework for the development of codes of conduct exists in Italy, which
provides that Internet service providers can implement codes of self-conduct
regulating the review of claims concerning (among others) unlawful behaviours of
their clients. To that end business, professional or consumer associations or
organizations promote the adoption of codes of conduct that transmit to the Ministry
of Productive Activities and the European Commission.46
4. STATIC, DYNAMIC AND LIVE BLOCKING INJUNCTIONS: AVAILABILITY AND

NATIONAL STANDARDS
4.1 Static blocking injunctions

In most Member States, blocking injunctions are available in the context of
(alleged) IPR infringements. Traditionally issued to block access to copyright-
infringing websites, 47 blocking injunctions have been broadening their scope to
different IPRs infringement, including trade marks, and websites offering devices and
software that allow for the circumvention of TPMs. 48 Of course, website blocking
might also be available as a remedy against other miscellaneous forms of
42 See ISPA Code of Conduct, available at https://www.ispa.be/code-conduct-fr/

43 Structurally infringing websites are websites whose business model is geared towards mass
copyright infringements according to an unanimous recommendation of the ‘clearing house’. See
‘Joint solution for dealing with structurally infringing websites on the Internet: Internet access
providers and rights holders set up independent "clearing house"’, Press Release (CUII, 11 March
2021) <https://cuii.info/fileadmin/files/20210311_PM_Gruendung_CUII.pdf>.
44See Regulation 2015(2120 of the European parliament and the Council on measures for access to
the open Internet and amending Directive 2002/22 / EC on universal service and user rights in
electronic communications networks and services and Regulation (EU) No. 531/2012 on roaming in
public mobile networks in the Union (2015) OJ L 310/1.
45 See Act on measures to prevent the distribution of child pornography (2006/1068).
46 See Legislative Decree 70/2003, Art. 18.
47 See, e.g., Nordemann (n 12) 363-366 (noting that website blocking has primarily concerned
infringements of the rights of communication to the public).
48 See, on this further expansion on the scope of blocking injunctions to websites selling TPMs
circumventing devices, Frosio and Bulayenko (n 1) 42; Nintendo Co Ltd v Sky UK ltd and others
[2019] EWHC 2376 (Ch).
8
infringement of civil and criminal law, including defamation, child pornography,
dangerous and terrorist speech, and illicit gambling.
The legal basis for blocking injunctions is provided by national legal instruments
transposing Article 8(3) of the InfoSoc Directive and Article 11 of the IPRED or other
national legislation. One notable exception is Germany, which has not implemented
the EU provisions by statute, relying instead on the courts to develop jurisprudence
concerning contributory infringement into an instrument effectively implementing
Article 8(3), via the application of the so-called Störerhaftung doctrine. 49 In this
context, the Bundesgerichtshof (BGH), the German Federal Court of Justice, has
ordered website blocking for the first time in two landmark decision in 2015. 50 In
these cases, the BGH ordered access providers to block access to websites
providing links to predominantly illegal content. 51 Since 2017, however, German
courts have started granting website blocking injunctions on the basis s 7(4) TMG,52
which entered into force that year and ‘amounts to a legally codified Störerhaftung
with regard to IP-related claims against telemedia services providers’. 53 This new
provision in the TMG might also amount de facto to an implementation, albeit partial,
of art 8(3), InfoSoc Directive and 11 IPRED, that specifically applies to injunctions
ordering the blocking of IP-infringing websites.
Blocking injunctions are customarily granted against Internet access providers.
Multiple Member States, however, might allow the measure to reach other
“intermediaries” whose services are used by a third party to infringe relevant IPRs, if
they are in the best position to block a website. In Germany, for example, the notion
also includes DNS resolver providers (in the case of DNS blocks) 54 and Wi-Fi
providers.55
49In Germany, intermediary liability for copyright infringement is almost invariably handled through the
doctrine of Störerhaftung—as an alternative to joint tortfeasance for which intermediaries hardly
qualify. This doctrine, based on BGB, §1004, grants a permanent injunctive relief to the proprietor
against anybody who has caused an interference. Störer means interferer with the property, who shall
be liable unless it is unreasonable to burden the interferer with a duty to examine whether his
behavior could interfere with the (intellectual) property of a third person. See, eg, BGH, 11 March
2004, I ZR 304/01 <https://juris.bundesgerichtshof.de/cgi-
bin/rechtsprechung/document.py?Gericht=bgh&Art=en&nr=30359&pos=0&anz=1>
; Broder Kleinschmidt, An International Comparison of ISP’s Liabilities for Unlawful Third Party
Content, 18 Int’l J. of L. & Info. Tech. 332, 346–347 (2010).
50 See BGH, 26 November 2015, Störerhaftung des Access-Providers, I ZR 174/14..
51
ibid
52
See Telemedia Act, s 7(4) <https://dejure.org/gesetze/TMG/7.html>. See also BGH, Dead Island, I ZR
64/17, 26 July 2018 (finding that the norm applies to Wifi operators and "wired" access providers alike).
53
Matthias Kettemann, ‘Follow-Up to the Comparative Study on “Blocking, Filtering And Takedown Of
Illegal Internet Content”’ (May 2019) 11<https://rm.coe.int/dgi-2019-update-chapter-germany-study-on-
blocking-and-filtering/168097ac51>.
54
See BGH, 15 October 2020, I ZR 13/19 (if they are ‘best placed’ to block the site)
55 See OLG Köln, GRUR 2021, 70 – Herz Kraft Werke.
9
Requirements for obtaining a blocking injunction differ among jurisdictions. On
one side, intermediary contributory liability is usually not requested in European
jurisdictions for imposing blocking injunctions on access providers and other
intermediaries, according to the principle that these measures apply to so-called
‘innocent third parties’. 56 On the other side, there are, however, some general
common requirements, including: (i) evidence of the allegedly infringed entitlements
such as ownership of the rights and the status of rightholder acting to protect
relevant interests; (ii) to demonstrate that the blocking injunction is aimed at a
service provider infringing and/or whose services are used to infringe, 57 which
implies also the provision of evidence of the alleged infringement; (iii) that the
requested blocking injunction is proportionate, 58 appropriate, necessary, and
‘reasonable’. 59 Sometimes, these last requirements are understood as to
demonstrate that there is “no other reasonable option” or that without the requested
blocking injunction the rightholders will be severely prejudiced. In particular,
according to German courts, there must be no alternative option or no way to reach
the infringer himself directly, who must not have responded to the request to cease
the infringing conduct. In sum, German courts require the order to be an ‘ultima ratio’
as a requirement for issuing a blocking injunction.60 Some requirements, however,
might have been endorsed by some European jurisdictions, and not by others. For
example, while in Sweden blocking injunctions shall be “effective” and in the
Netherlands “subsidiarity” and “prevailing interest” should be considered, in Spain
the “subsidiarity” (i.e., the need to start proceeding against the infringer itself
previously or at the same time when starting an action against the ISPs), and
“effectiveness” have been expressly ruled out as requirements’. Instead, in Spain,
injunctions must be ‘objective’ and ‘non-discriminatory’.
A decision on the merits (i.e., on the IPR infringement), whether a full review for
issuing a permanent injunction or a partial review for issuing interim measures,
would be necessary for granting a blocking injunction. Customarily, a full decision on
the merits would not be necessary and blocking injunctions can be issued upon a
partial review of the merits in interim proceedings, which should be followed by a
final permanent decision on the merits. For example, in Italy, blocking injunctions can
be issued in the course of urgency proceedings, based on a preliminary assessment
of the merits (“fumus boni iuris”), whilst the merit of the case can be fully analysed
56See, in general, Husovec (n 2). Frosio and Bulayenko (n 1) 33 (mentioning the exception of
Germany and Sweden).
57 See eg Copyright Act, Article 26d; Related Rights Act, Article 15e (Netherlands) (but this would
apply to most countries, such as Belgium, Denmark, Finland, France, Germany, Greece, Italy,
Lithuania, the Netherlands, Sweden and UK).
58 See eg Copyright Act, Article 26d; Related Rights Act, Article 15e (Netherlands).
59 ibid.
60See eg BGH, 26 November 2015, I ZR 174/14 <https://dejure.org/2015,35119>; Landgericht
München I of 7 June 2019, MMR 2019, 535 ff. (reiterating what the BGH found as part of a series of
so-called Goldesel decisions).
10
and decided in a subsequent judgment.61 In any event, if the judgment on the merit
is not started, injunctions issued in the course of an urgency proceedings and not
revoked will stay in force. Actually, blocking injunctions can be requested as both
preliminary and final injunctions in most jurisdictions, with the notable exceptions of
France, Ireland, and the UK, where site blocking can be requested only as final
injunctions. 62 In Germany, however, as mentioned immediately below, preliminary
injunctions are issued under a very restrictive ‘urgency’ requirement.63
Proceedings to obtain a blocking order can be theoretically ex parte and inter
partes in several European jurisdictions. However, reservations are commonly made
with regard to ex parte proceedings. In Germany, for example, ex parte proceedings
are limited, by a requirement of ‘urgency’. In fact, this is a general requirement
whenever an interim injunction is applied for. Strictly speaking, laches are applied for
lack of legal interest if the applicant waits too long before seeking judicial redress.
This requirement resembles closely the ‘periculum in mora’ applied by Italian and
Spanish courts in interim proceedings. In any event, ‘urgency’ is not consistently
applied, nor a legal definition exists, and German courts’ views differ substantially.
According to the case law of the Court of Appeal of Munich, which has not been
confirmed yet by other Court of Appeals in Germany, urgency means that the
applying rightholder must not have delayed action for more than 1-2 months
(urgency window). In website blocking cases, the OLG Munich has provided that this
urgency window opens with the knowledge of the existence of the site to be blocked,
rather than the knowledge of a particular copyright infringement. In practice,
rightholders have to apply for interim blocking injunctions within 1-2- months after
they had knowledge of the rogue website. Uploading of new economically relevant
works onto the rogue site will not reopen the urgency window, as long as
comparable works have been available on the site for more than 1-2 months.64 In
contrast, however, the Cologne District Court and Higher Regional Court oppose the
"Munich" approach and, in their decisions against the DNS provider Cloudflare, allow
"new urgency" when recent works are uploaded.65 In the Netherland, the law would
require IPR infringement by the intermediary for issuing blocking injunctions ex
parte.66 In the UK, ex parte blocking injunction are possible ‘in principle’, however the
applicants have typically adopted the following process in practice: (a) the operator
of the target website is notified of the infringement but is not joined to the
proceedings; (b) the intermediary being formally served with the application does not
oppose orders for blocking injunctions; (c) applications are then dealt with on the
papers without a hearing unless there is a novel point on which the court requires or
61 See eg Antonio Caratta, ‘Profili sistematici della tutela cautelare’ in Antonio Caratta (ed), I
procedimenti cautelari (2013) 40 ff.
62 See Frosio and Bulayenko (n 1) 33-34.
63 Landgericht München I (n 60)
64 See OLG München, 17 October 2019, Libgen and Scihub, 29 U 1661/19.
65
OLG Köln, 9 October 2020 - I-6 U 32/20 <https://dejure.org/2020,36689>.
66 See Code of Civil Procedure, Article 1019e.
11
would benefit from oral submissions. 67 In some countries, such as Denmark, ex
parte proceedings were said to be the exception, only applied if it is presumed that
the purpose of the injunction will be defied if the counterparty is notified. In Finland,
courts can order ex parte interim injunctions, however, the longer-term final blocking
injunctions require the intermediary to be heard. The proceedings are only inter
partes in France, Greece, Ireland, Italy, and Spain, even if the defendants do not
actively participate in the legal proceedings, e.g., remain neutral or do not oppose
the application.
4.2 Dynamic blocking injunctions

Dynamic blocking injunctions have been granted in most European jurisdictions,
including Denmark, 68 France, 69 Ireland, 70 Italy, 71 Netherlands, 72 Spain, 73 Sweden, 74
and the UK. 75 However, the notion of ‘dynamic blocking injunction’ is usually not
defined by national law, with some exception, such as in the case of Lithuania.76 In
any event, courts have interpreted the current laws to include dynamic injunctions.
General IP provisions providing remedies for infringement 77 and the national
67 See Twentieth Century Fox Film Corp v British Telecommunications plc [2011] EWHC 2714
(‘Newzbin2’).
68See eg Maritime and Commercial Court (Sø- & Handelsretten), Case Number A-51-17, 21 February
2018, Fritz Hansen A/S and Others (represented by Rettighedsalliancen SMF.) v. Telia Danmark A/S
and Dominidesign Furniture LTD.; and District Court of Frederiksberg - Copenhagen - 05/12/2017 -
RettighedsAlliancen etc. v. TDC A/S.
69See eg TGI Paris, 15 December 2017, no. 17/13471 (‘TGI Paris 17/13471’); and TGI Paris, 17 May
2019, no. 18/14478.
70 See eg EMI v Eircom [2009] IEHC 411; EMI v UPC [2013] IEHC 274; Sony Music Entertainment
(Ireland) & Ors v UPC; Communications Ireland Limited [2016] IECA 231; and Twentieth Century Fox
Film Corporation & Ors v Eircom Limited & Ors [2018] IEHC 54.
71See eg Court of Milan 14 January 2020; Court of Milan, 24 December 2019; and Court of Milan, 12
April 2018.
72 See Ziggo et al (n 13),
73See eg Juzgado de lo Mercantil no. 6, Barcelona [Commercial Court no. 6 of Barcelona], 12
January 2017, decision no 15/2018, ECLI: ES:JMB:2017:1005 (‘Commercial Court of Barcelona
15/2018’).
74 See eg Decision of Patent and Market Court of Appeal, June 2020, PMT 13399-19.
75See eg Twentieth Century Fox Film Corp v British Telecommunications plc [2011] EWHC 2714; and
Football Association Premier League Ltd v British Telecommunications plc [2017] EWHC 480 (Ch).
76See Order of the Minister of Culture of The Republic of Lithuania on Approval of The Description of
The Procedure for Imposition of Mandatory Instructions on Internet Access Service Providers of 20
November 2019, no V-771 (TAR, 2019-11-26, Nr. 2019-18793), Article 5 (providing ‘[t]he
Commission’s decisions on imposing the mandatory instructions on internet access service providers
shall provide for dynamic blocking – they shall instruct to block current and future internet domain
names identifying the websites, which are used for unlawfully communicating copyright content to the
public, i.e., the instruction shall cover current and future copies of the websites’).
77 See eg in Belgium, on the basis of Article XI.334 CEL; in Denmark, AJA, §413; in France,
Intellectual Property Code (CPI), Article 336-2; in Ireland, Copyright and Related Rights Act 2000,
12
implementation of Article 11 of the IPRED, which also provides that the judge can
order intermediaries to take measures to prevent new infringements,78 have served
as a legal basis for dynamic injunctions. This also implies, thus, that there are no
specific requirements for the grant of a dynamic blocking injunction over the
requirements in place for a standard blocking order.
On the basis of this expansive interpretation of the norms, courts have been
granting dynamic blocking injunctions in most European jurisdictions and setting up
all necessary requirements. However, so far, the number of dynamic blocking
injunctions issued in each Member States has been rather limited, 79 with the
exception of the UK. In Newzbin2, Lord Justice Arnold clarifies the rationale for the
wide acceptance of ‘dynamic’ injunctions by UK courts:
‘I do not consider that the Studios should be obliged to return to court for an
order in respect of every single IP address or URL that the operators of
Newzbin2 may use. In my view the wording proposed by the Studios strikes the
appropriate balance. If there is a dispute between the parties as to whether the
predominant purpose of an IP address or URL is to enable or facilitate access
to Newzbin2, they will be able to apply to the court for a resolution of the
dispute. In saying this, I do not mean that BT will be obliged to check IP
addresses or URLs notified by the Studios. It will be the Studios' responsibility
accurately to identify IP addresses and URLs to be notified to BT.’80
In the UK, actually, any grant of a blocking injunction is considered ‘dynamic’ as they
include provisions that require the ISP to actively block any additional IP addresses,
URLs and/or domain names that host the content or may be notified by the
rightholders during the duration of the order.81 This notification procedure operates
without either party having to make any further application to the court. This allows
the rightholders to respond to efforts made by the website operators to circumvent
the orders by changing the location of the target website. UK website blocking orders
also require rightholders to notify the ISPs of IP addresses, URLs and/or domain
names that should no longer be blocked, for example, where an IP address/URL
which has been notified for blocking ceases to be a location whose sole or
predominant purpose is to enable or facilitate access to a target website.
As mentioned, although in a more limited fashion, dynamic blocking injunctions
have been issued by courts in most European jurisdictions. In Denmark, courts will
usually grant dynamic blocking injunction with the following wording: ‘The injunction
also applies to other domains that provide access to the same Internet services and
Section 40(5A); in Sweden, Trademark Act (2010:1877), Section 8 Article 3; Article 35 b of the Design
Protection Act (1970:485) and Article 57 b of the Patent Act (1967:837).
78 Cf. L’Oréal (n 31).
79See eg only one case in the Netherlands, only against Google in France, only a few dynamic
blocking injunctions so far granted in Sweden (e.g., PMT 7262-18); no dynamic blocking injunction
have been so far issued in Greece.
80 See Newzbin2 (n 67) para 12.
81 ibid
13
which the [plaintiff] makes the defendant explicitly aware of, in which connection the
[plaintiff] undertakes to legally and financially vouch for that such other domains
provide access to the Internet services to which this Decision relates’.82 In Ireland,
dynamic blocking injunctions have been granted in a number of cases for copyright
infringement.83 In the Netherlands, dynamic blocking injunctions have been issued
against access providers for the blocking of The Pirate Bay by providing the following
definition: ‘in the event that The Pirate Pay becomes accessible through other /
additional IP addresses, to block access by their customers to such other/additional
IP addresses and/or (sub)domain names, and keep them blocked, after notification
of the correct IP addresses and/or (sub)domain names by BREIN to each of the
Providers individually’.84
Judicial application of established civil law theories might also achieve the same
effects a ‘dynamic/forward looking’ injunctions proper. In Germany, for example, the
so-called ‘Kerntheorie’ might lead to the same result as dynamic blocking
injunctions.85 According to the ‘Kerntheorie’, infringements similar in their core (Kern)
trigger a duty to review and notice-and-stay-down. In the so-called Internet Auction
cases I-III, the German Federal Court of Justice repeatedly decided that notified
trade mark infringements oblige internet auction platforms such as eBay to
investigate future offerings, manually or through software filters, in order to avoid
trade mark infringement. 86 This jurisprudence comes down to conclusions
resembling closely those of the CJEU in L’Oréal, thus, it might theoretically support
availability of forward looking injunctions also in the form of website blocking orders
against access providers. In fact, German courts have been so far applying the
Kerntheorie only to order the take down of infringing content against hosting
providers. However, a recent decision from the Munich Higher Regional Court might
suggest an expansion of the scope of proactive forward-looking injunctions. The
Munich court has apparently imposed dynamic blocking injunction on access
providers to block the website ‘kinox.to’, by applying the duty of care provided for
under the Störerhaftung doctrine. 87 The decision may be possibly interpreted as
82 See Frosio and Bulayenko (n 1) 37.

83See eg EMI v Eircom [2009] IEHC 411; and Sony Music Entertainment (Ireland) & Ors v UPC
Communications Ireland Limited [2016] IECA 231.
84 Ziggo et al (n 13) §3.8.6.
85This theory would apply under the more general umbrella of the Störerhaftung doctrine or possibly s
7(4), TMG. See (n 49 and 52)
86 See eg BGH 11 March 2004, Rolex v Ebay/Ricardo (aka Internetversteigerung I), I ZR 304/01,
GRUR 2004, 860 (DE), para 31 (noting ‘[w]henever the defendant's attention has been drawn to a
clear infringement of rights not only is it obliged to block access to the specific offer […], it must also
ensure that such trade mark infringements will as far as possible not occur in the future. […] The
defendant is obliged to react to these cases by subjecting offers of Rolex watches to a special
examination’); BGH, 19 April 2007, Rolex v. eBay (a.k.a. Internetversteigerung II), I ZR 35/04, GRUR
2007, 708 (DE); BGH, 30 April 2008, Rolex v. Ricardo (a.k.a. Internetversteigerung III), Case I ZR
73/05, GRUR 2008, 702 (DE).
87See Munich Regional Court, 1 February 2018, 7 O 17752/17, upheld by the Munich Higher
Regional Court, 14 June 2018, 29 U 732/18 <http://copyrightblog.kluweriplaw.com/wp-
content/uploads/sites/49/2018/05/Translation-of-Decision-of-District-Court-Munich.pdf> (English
14
granting a dynamic blocking injunction as far as it does not seem to be limited to the
particular domain ‘kinox.to’ but to the business of ‘kinox’ as a whole, irrespective of
the domain name.88 It is worth noting, however, that the BGH Internet Action cases
set precise boundaries to the proactive filtering obligations that can be imposed on
intermediaries, in line with the general principle that injunctions under Article 18(1)
ECD should not limit freedom to conduct a business by imposing an ‘excessive
obligation’ on the host provider.89 The German Supreme Court has always stressed
that proactive monitoring obligations cannot go as far as endangering the platforms’
business models, if it is a legal business model. 90 For example, Internet auction
platforms such as eBay could not be asked to manually check all entries because
that would have been economically unfeasible.91
In any event, however, the admissibility of dynamic injunctions has been debated.
In Belgium, case law is divided on the subject of dynamic injunctions against
intermediaries.92 From a broad civil procedure perspective, courts seem convinced
that it is necessary to appear before the judge for each new infringement and refuse
to grant a broad measure that would also apply to future infringements. 93 Thus, in a
recent decision, the blocking order only concerned domain names and sub-domain
names explicitly included in a list drawn up by the claimant, to the exclusion of all
other domain names.94 However, in criminal matters, the dynamic injunction seems
to be more accepted without actually being named. In 2013, the Cour de Cassation
upheld a criminal injunction which implied that all Internet access providers in
Belgium must disable access to the content hosted on the servers linked to the
domain name “thepiratebay.org”, by the technical process of ‘reverse IP domain
translation). While the OLG München applied the Störerhaftung doctrine, the BGH shortly after found
s 7(4), TMG to be also applicable to regular access providers as well. See (n 52)
88 ibid.
89 Glawischnig-Piesczek (n 30) para 44.
90 See (n 86).
91 See BGH, 22 July 2010, Kinderhochstühle im Internet, I ZR 139/08, GRUR 152 (DE). For a
discussion of business models primarily designed to infringe copyright, see BGH, 15 August 2013,
GEMA v. RapidShare, I ZR 79/12, 2014 GRUR-RR 136 (DE), https://stichtingbrein.nl/public/2013-08-
15%20BGH_RapidShare_EN.pdf (English translation); BGH, 12 July 2012, Atari Europe v
RapidShare, I ZR 18/11, 2013 GRUR 370 (DE)
92 The doctrine seems to be equally divided as well. See eg Philippe Campolini, Stéphanie
Hermoye and Frédéric Lejeune, ‘Droit d’auteur et contrefaçon dans l’environnement internet: les
injonctions contre les intermédiaires’ (2017) 3 A&M 260 (in favour of dynamic blocking injunctions);
Véronique Delforge, Didier Gobert, and Jean-Philippe Moiny, ‘Blocage de site web à contenu illégal :
la Cour de justice affine sa jurisprudence’ (2014) 55 RDTI 54 (supporting the 2013 Cour de Cassation
decision and, in particular, when a public authority is responsible for ascertaining or notifying the
reappearance of the disputed content). But see contra Catherine Forget, ‘Les nouvelles méthodes
d’enquêtes dans un contexte informatique : vers un encadrement (plus) strict ?’ (2017) 66-67 RDTI 38
(noting that ‘dynamic’ measures are likely to infringe privacy and freedom of expression).
93See Prés civ Bruxelles, 9 août 2013 (2014) A&M 508; Prés tribunal d’arrondissement de
Luxembourg, 16 mars 2016 (cess.) (2016) A&M 157
94 See Trib entr Bruxelles (cess), 13 novembre 2019 (2019) 4 A&M, 489 and 490.
15
check’95 as well as any domain name that refers to this server notified to the access
providers by the Federal Crime Computer Unit or the Regional Crime Computer
Unit.96 Again, in Italy, it has been argued that dynamic blocking orders are against
the long-standing principle of Italian civil procedure that the scope of interim
injunctions must be clearly defined and limited. Finally, Italian courts have widely
accepted dynamic injunctions as admissible due to the fact that otherwise the
rightsholders would be forced to bring a new case against every access provider for
each website hosting contents in breach of their IPR.97
Instead, dynamic (blocking) injunctions are not available in Finland, and their
availability has not yet been tested in court in Germany98 and Greece. In Finland,
new IP addresses or domain names cannot be added to the scope of an existing
blocking order without filing a new application to the Market Court, as stated clearly
in the preparatory documents of the Copyright Act.99 The preparatory works of the
Copyright Act underline, on the one hand, technical limitations of what blocking
injunctions can do against widespread unauthorized dissemination of works on the
Internet, and on the other hand, the risks and detriments that a broader dynamic
approach to blocking injunctions would impose on the other fundamental rights and
freedoms. Copyright protection should, thus, (i) consider balanced safeguard of all
competing rights at stake (ii) not lead to unreasonable restrictions on the rights of
both copyright holders and users of works; (iii) not affect communications to the
public more than strictly necessary for protecting copyright and (iv) any limitations
should be based on observable objective criteria. 100 As a consequence, blocking
orders can be used only in case of severe copyright infringements and their impact
to interests of other stakeholders, including intermediaries and third parties, must be
taken into account. Therefore, blocking orders were limited in their length and their
scope set to specifically pre-determined identifiers, so that the continuation of the
measures must be subject to regular court proceedings to assess whether the
grounds for the injunction still exist.101
95 The search for any domain name that refers to a given IP address.
96See Cass. (2è ch, sect nl) 22 octobre 2013, Pas, 2013, no 540, 2007 (concerning the seizure of
digital data on the basis of article 39bis CCP).
97See Court of Milan, 12 April 2018; Court of Milan, 24 December 2019; Court of Milan, 14 January
2020.
98But see above the discussion of the German ‘Kerntheorie”, under which the effect of a “dynamic”
blocking injunction might be achieved with ‘normal’ injunctions.
99See Finnish Market Court (Markkinaoikeus), MAO:311/18, 7.6.2018 and Government’s Proposal
181/2015 vp, 25 and 37 (stating that an injunction can be changed and new IP-address added in the
scope with a new application). See also Government’s Proposal vp 201/2018 vp. on trademarks.
100 Government’s Proposal 181/2015 vp, p. 60-65.
101 Education and Culture Committee of the Parliament in SiVM 26/2014 vp, p. 6.
16
4.3. Live blocking injunctions
National case-law has been increasingly concerned with blocking injunctions for
combating illegal broadcasting of live (sports) events, including online transmission
(internet protocol TV or IPTV).102 To that end, as a sub-species of ‘dynamic’ blocking
orders, some European jurisdictions have made available ‘live’ blocking orders with
the principal goal of limiting infringement of right to live (sports) events. These orders
only have effect at the times when live match/event footage is being broadcast.
These live blocking orders allow new servers to be blocked every week to prevent
the continued infringement of IPRs but only come into force when the broadcast is in
session.
Live blocking orders are available in Greece,103 Ireland,104 Spain, the Netherlands,
and the UK. The UK, a pioneer in this field, has a system of ‘live’ blocking orders that
allows the repeated blocking of a site every time a live broadcast is in process.105
These ‘live blocking orders’ are dynamic in so far as the orders provide for the list of
target servers to be "re-set" on a regular basis during the lifetime of the order. This
allows for new servers to be identified by the rightsholder and notified to the
defendants for blocking, and ensures that old servers are not blocked after a certain
time unless they continue to be observed as sources of infringing footage. In the
‘live’ blocking decision in FAPL v BT, the High Court noted that the dynamic order
sought in that case differed from those previously granted as
although it is standard practice for orders under section 97A [of the CDPA] to
enable the IP address or URL of the target website to be updated as and when
necessary, the Order provides for the list of Target Servers to be "re-set" each
match week during the Premier League season. This allows for new servers to
be identified by FAPL and notified to the Defendants for blocking each week,
102See Illegal IPTV in the European Union, EUIPO, November 2019, 7, para 1.2.1, 1.4.1, 1.6.5, 4.2.3,
5.1.3, 5.2.1; Etude de l’impact économique de la consommation illicite en ligne de contenus
audiovisuels et de retransmissions d’événements sportifs, HADOPI, 2 December 2020 (claiming that
piracy has led to an economic loss of 1.03 billion Euros in the audiovisual and sport sector in 2019);
Deloitte, European Citizens and Intellectual Property: Perception, Awareness, and Behaviours,
EUIPO, 23 March 2017, 68-70 (discussing European perception of piracy, including sports events).
103 See Maria-Papadopoulou and Eva Moustaka, ‘Recent Developments in the Fight Against Online
Copyright Piracy: Embracing The Dynamic Nature of Enforcement (Dynamic And Live Blocking
Injunctions)’ (2020) 4 Technology & Communication Law (DITE) 549ff (discussing recent provisions
concerning the issuing of dynamic injunctions, as well as of live blocking injunctions, in par. 10 of
Article 66E of Law 2121/1993 <https://www.opi.gr/en/library/law-2121-1993#a66e>).
104The court is able to grant a live blocking injunction, under Section 40(5A) of the Copyright and
Related Rights Act 200, as in the cases of The Football Association Premier League Ltd v Eircom &
Ors [2019] IEHC 615 (‘FAPL 2019’) and The Football Association Premier League Limited v Eircom
Limited & Ors [2020] IEHC 332 (‘FAPL 2020’).
105See, e.g., Football Association Premier League Ltd v British Telecommunications plc [2017]
EWHC 480 (Ch)‘; Union Des Associations Européennes De Football v British Telecommunications plc
[2017] EWHC 3414 (Ch); Football Association Premier League Ltd v British Telecommunications plc
[2018] EWHC 1828 (Ch) (‘FAPL 2018’); Matchroom Boxing Limited v British Telecommunications plc
[2018] EWHC 2443 (Ch).
17
and ensures that old servers are not blocked after the end of a week unless
they continue to be observed as sources of infringing footage.106
Live blocking injunctions are also available in Spain under five judicially made
conditions: (i) blocking the websites in all web resources (URLs, domains, IP
addresses) and under access in HTTP and HTTPS protocols, within a 72 hours
deadline after service of the decision; (ii) inform the plaintiff of the effective execution
of the blocking, with identification of all the web resources blocked (URLs, domains,
IP addresses) and HTTP and HTTPS protocols, and the day, hour and minute of
execution of the blocking in each web resource; (iii) the blocking measures are
limited in time, namely three seasons (2019-2022), without prejudice to the
suspension of the blocking in case it is established that the blocked website resource
is disabled on the Internet, as it does not provide illegal content; (iv) the decision
orders to block the “pirate websites”, “related” with the blocked ones, that the plaintiff
identifies in a new list that will be sent directly and simultaneously to all the ISPs, on
a weekly basis; and (v) the blocking of the weekly reported sites must be carried out
in a maximum of 3 hours from the notification of the new list.107
In the Ecatel case, a Dutch court has provided very short timeframes for blocking
live streams of infringing content. The case was brought by the English Premier
League against Ecatel, a provider of dedicated servers located in Amsterdam.108 The
court has limited the timeframe for implementing live blocking injunctions to thirty
minutes after receiving the notice from the rightholders (or a designated third party)
of the newly identified live streams of infringing content. 109 Of course, short
timeframes are of essence for providing protection to the broadcasting rights over
events that customarily last a very limited time, usually below two hours.
In other European jurisdictions, ‘live’ blocking is not available yet or, at least, the
availability of such measures has not been tested in court yet.110 However, there is
an ongoing debate on whether ‘live’ blocking injunctions should be provided for by
legislation or granted by courts. In France, for example, a discussion regarding ‘live’
blocking, in particular of sports events, has emerged in connection to the Draft Law
on audiovisual communication and cultural sovereignty in the digital age. 111 The
proposal would enable owners of broadcasting rights over sports events to (i) obtain,
106 FAPL 2018 (n 105) para 25.

107See Juzgado de lo Mercantil no 7, Madrid [Commercial Court no 7 of Madrid], 11 February 2020,
Telefónica Audiovisual Digital v Vodafone España et al, decision no 2174/2019, ECLI:
ES:JMM:2020:2 (‘Commercial Court of Madrid 2174/2019’) (ordering the blocking of a total of 31
websites and 44 URLs for three sporting seasons, i.e., until 25 May 2022).
108See Court of The Hague, 24 January 2014, The Football Association Premier League v. Ecatel, C /
09/485400 / HA ZA 15-367, ECLI: NL:RBDHA:2018:615.
109 ibid., para 5.1.
110There is, apparently, no reason to believe that such measures could not be granted in most
European jurisdictions, at least those where dynamic blocking orders have been already granted.
111
Projet de loi relatif à la communication audiovisuelle et à la souveraineté culturelle à l'ère
numérique (MICE1927829L).
18
under a single procedure, a dynamic decision extending the effectiveness of the
measures to block or delist the illicit sites or services identified on the day of the
decision to other sites or services likely to appear during the competition; (ii) enjoy
measures that last a maximum of 12 months, and may be implemented in
accordance with a provisional timetable modelled on the official competition
calendar; (iii) undertake these actions, including as a preventive measure, so that
the decision can be taken in a timely manner as regards the temporality of each
sports event or competition, in order, in particular, to protect more effectively
competitions lasting a few days or weeks; and (iv) rely on a regulator acting as a
trusted third party to facilitate the identification of pirate sites or services, particularly
mirror services.
5. IMPLEMENTATION COSTS
The allocation of costs of enforcement—that is, whether the rightholders or the
online intermediaries should sustain the costs of blocking—becomes a key factor in
reviewing the proper balance between freedom to conduct business and blocking
orders. Allocation of costs of implementing blocking measures has been treated
quite inconsistently across the Europe. EU law and CJEU jurisprudence say little in
this regard and leave the decision to the national courts on the basis of their national
law. The CJEU in UPC Telekabel only reminds that ‘[an injunction] constrains its
addressee in a manner which restricts the free use of the resources at his disposal
because it obliges him to take measures which may represent a significant cost for
him’.112
The intermediaries are bearing the costs of implementing a blocking injunction in
most European jurisdictions. This is justified under the assumption that
intermediaries (i) should contribute to the fight against online infringement, (ii)
internalize value thanks to the infringement occurring on their networks, and (iii) are
best positioned to end online infringements. The French Cour de cassation in the
Allostreaming case,113 a copyright infringement case, established that the blocking
costs were entirely ISPs’ responsibility as long as those measures are proportionate.
The Court noted that EU provisions ‘do not prevent the costs of the measures strictly
necessary for safeguarding the rights in question […] from being borne by the
technical intermediaries, even when such measures may present significant costs for
the intermediaries. The aforementioned Directives 2000/31 and 2001/29 […] foresee
that notwithstanding the principle of non-responsibility of the intermediaries, the ISPs
and hosting providers are required to contribute to the fight against the illegal content
and, in particular, against the infringement of copyright and related rights, when they
are best positioned to put an end to such violations’.114 In Italy, costs are internalized
112 UPC Telekabel (n 24) para 57.

113 See Cour de cassation [French Supreme Court] SFR, Orange, Free, Bouygues télécom et al. v
Union des producteurs de cinéma et al, 6 July 2017, 16-17.217, 16-18298, 16-18348, 16-18595
(‘Allostreaming’).
114 As translated in Oleksandr Bulayenko, Cour de cassation, Urt. v. 6.7.2017 (SFR, Orange, Free et
al. / Union des producteurs de cinéma et al.) (translation into English) (2018) (1) GRUR Int’l 51–53.
19
by the intermediaries under the assumption that costs should be borne by the
entities making technically possible the breach of relevant IPRs. Again, according to
the Amsterdam Court of Appeal in Ziggo et al, the claimed blocking order does not
demand unbearable sacrifices from the access provider, cannot be deemed as
unreasonable, and can be regarded as a relatively minor encroachment of the
freedom of entrepreneurship of Ziggo et al. 115 In Spain, the HDFull decision has
established that:
[c]ompanies engaged in information services intermediation derive an
economic benefit from access to websites, more specifically through
advertisements shown in such pages. Therefore, it is legitimate and consistent
with the proportionality principle that they financially contribute to blocking or
delisting measures by electing the implementation of measures that are most
appropriate as stated in paragraph 52 of the UPC Telekabel Wien GmbH
judgment.116
In contrast to the practice in most Member States, the UK Supreme Court in
Cartier, 117 a trade mark infringement case, allocated the costs of blocking and
delisting to rightholders, noting that ‘the ordinary principle is that unless there are
good reasons for a different order an innocent intermediary is entitled to be
indemnified by the rights-holder against the costs of complying with a website-
blocking order’. Prior to this decision, however, also UK courts have justified
allocation of costs to intermediaries in the following terms: (i) exposure of
intermediaries to an injunction under Article 8(3) of the InfoSoc Directive is a quid pro
quo for immunity under the safe harbours in the ECD; (ii) as the ISP makes a profit
from the provision of access to the infringing target services, the costs of
implementing the order can be regarded as a cost of carrying on that business; (iii)
the cost of implementing the order is a factor that can be taken into account when
assessing the proportionality of the injunction but that cost to the ISPs ‘would be
modest and proportionate’.118
Courts, nonetheless, have also expressed opinions attempting to balance more
fairly the interests at stake. It is worth noting that both the UK and French Courts of
Appeal reviewing the Cartier and Allostreaming cases had instead decided that the
costs of enforcement had to be equally divided between the two parties.119 Recently,
in France, the Tribunal judiciaire de Paris has specified that the plaintiffs had to warn
the ISPs in case of closure or disappearance of the sites listed in the court decision
in order to avoid excessive blocking costs. In addition, an access provider can ask
for a release of the measures ordered which led to an overblocking (this after having
115 Ziggo et al (n 13).

116 See Commercial Court of Barcelona 15/2018 (n 73).
117 Cartier International AG v British Telecommunications plc [2018] UKSC 28 para 31.
118 Newzbin2 (n 67) para 200.
119See eg Cartier Int’l AG and others v British Telecommunications Plc and another [2017] Bus LR 1
[100]–[128] (CA) (UK).
20
approached the plaintiffs in vain).120 Other courts in Europe, such as the Irish Court
of Appeal in the Sony Music case,121 although deciding on costs for setting up a
graduate response scheme rather than website blocking, came down to a different
ratio in allocating costs, imposing 80 per cent of the costs to the online
intermediaries and 20 per cent to the rightholders. Also, a more nuanced approach
might come from Belgium. Although in Belgium the question of allocation of costs still
remains open, a judgment of the Antwerp seems to conclude that the costs might be
borne by the intermediary as long as the ‘measures are within a range of the
intermediary’ and as long as the intermediaries ‘should be able to act as
intermediaries at an acceptable cost’.122
6. BALANCING OF RIGHTS AND PROPORTIONALITY OF MEASURES

The issuance and availability of static, dynamic, and live blocking injunctions
depends on proportional balancing of rights and interests. On one side, in order to
guarantee proportional balancing of fundamental rights,123 blocking injunctions must
be consistent with the constitutional legal framework set up by the European
Convention for the Protection of Human Rights and Fundamental Freedoms
(European Convention of Human Rights or ECHR), 124 as construed by the European
Court of Human Rights (ECtHR) and, in particular, by the Charter of Fundamental
Rights of the European Union (EU Charter),125 as interpreted by the CJEU. On the
other side, in balancing rights and interests when issuing blocking injunctions,
competent courts and authorities need also to comply with Article 3 of the IPRED
and general proportionality principles of EU law.126
6.1 Balancing of competing fundamental rights

According to Article 10 ECHR and Article 11 EU Charter, the fundamental right to
freedom of expression does not solely guarantee the right to impart information but
120 TJ Paris, 16 janvier 2020, RG 19/14013.

121 See Sony Music Entertainment Ireland Ltd v UPC Communications Ireland Ltd [2016] IECA 231
(Ire.) (‘[b]ecause the defendant is the company which profits—albeit indirectly—because it derives
revenue from its subscribers who are engaged in this practice, it is the defendant who should, in my
view, be primarily liable for the costs’).
122 See Court of Appeal of Antwerp, 26 September 2011 (2012) A&M 220.
123See, in general, Christophe Geiger, Giancarlo Frosio and Elena Izyumenko, ‘Intermediary Liability
and Fundamental Rights’ in Giancarlo Frosio (ed), The Oxford Handbook of Online Intermediary
Liability (OUP 2020) 138-152; Christophe Geiger and Elena Izyumenko, ‘The Role of Human Rights in
Copyright Enforcement Online: Elaborating a Legal Framework for Website Blocking’ (2016) 32(1)
American U Int’l L Rev 43.
124Convention for the Protection of Human Rights and Fundamental Freedoms, adopted in Rome on
4 November 1950, amended by Protocols 11, entered into force on 1 November 1998, and 14,
entered into force on 1 June 2010, and supplemented by Protocols 1, 4, 6, 7, 12 and 13 (ECHR).
125 See Charter of Fundamental Rights of the European Union (2012) OJ (C 326) 391.
126 IPRED, Art. 3.
21
also to the right of the public to receive information,127 including the ‘right to internet
access’, a right that is becoming fundamental in the eyes of many.128 The ECtHR
concluded that:
[t]he right to Internet access is considered to be inherent in the right to access
information and communication protected by national Constitutions and
encompasses the right for each individual to participate in the information
society and the obligation for States to guarantee access to the Internet for
their citizens.129
This makes any action that affects the accessibility of the internet an interference
with the rights guaranteed by Article 10 ECHR.130 In particular, websites, as means
of dissemination of information, benefit from the protection afforded under Article 10
ECHR, since ‘any restriction imposed on such means necessarily interferes with the
right to receive and impart information’.131 The European Commission echoed this by
stating: ‘[a]ny limitations to access to the Open Internet can impact on end-user’s
freedom of expression and the way in which they can receive and impart information
[…] there are many instances when unjustified blocking and throttling occurs’. 132
Consequently, a Google service to facilitate the creation and sharing of websites 133,
as well as a video-hosting website134 and a website which enabled users to share
digital content135, were regarded as means of dissemination of information. Article 10
ECHR, and Article 11 EU Charter, provide at least five conditions that can be
extracted from the practice of the European Courts and that a court must consider
when ruling on a website-blocking case. First, the manner of the site usage, second,
the effect on legitimate communication caused by blocking the site, third, the public
interest in accessing the information, fourth, if the information is available in another
127 See eg Times Newspapers Ltd (Nos 1 and 2) v United Kingdom App. nos 3002/03 and 23676/03
(ECtHR, 10 March 2009) para 27; Ahmet Yildirim v Turkey App. no. 3111/10 (ECtHR, 18 December
2012) (hereafter ‘Yildirim’) para 50; Guseva v Bulgaria App no 6987/07 (ECtHR, 17 February 2015)
para 36; Cengiz and Others v Turkey App. nos 48226/10 and 14027/11 (ECtHR, 1 December 2015)
(hereafter ‘Cengiz’) para 56.
128 See for further discussion on the recognition of internet access as a fundamental right, Frosio and
Bulayenko (n 1) 22-23; Nicola Lucchi, ‘Access to Network Services and Protection of Constitutional
Rights: Recognizing the Essential Role of Internet Access for the Freedom of Expression’ (2011)
19(3) Cardozo J of Int’l and Comp L 645; Molly Land, ‘Toward an International Law of the Internet’
(2013) 54(2) Harv Int’l LJ 393
129 Yildirim (n 127) para 31.
130 See Cengiz (n 127) para 57.
131 Yildirim (n 127) para 50. See also Cengiz (n 127) para 56.
132 European Commission, ‘Staff Working Document, Impact Assessment Accompanying the
Document Proposal for a Regulation of the European Parliament and of the Council laying down
measures concerning the European single market for electronic communications and to achieve a
Connected Continent, and amending Directives 2002/20/EC, 2002/21/EC and 2002/22/EC and
Regulations (EC) No. 1211/2009 and (EU) No. 531/2012’ SWD (2013) 331 final, s. 3.4.
133 See Yildirim (n 127) para 49.
134 See Cengiz (n 127) para 54.
135 See Neij and Sunde Kolmisoppi v Sweden (dec.) App no 40397/12 (ECtHR, 19 February 2013).
22
form, and fifth, the effect on internet users and intermediaries under Article 10
ECHR.136
In the recent cases of Vladimir Kharitonov v. Russia,137 OOO Flavus and Others
v. Russia,138 Bulgakov v. Russia,139 and Engels v. Russia,140 the ECtHR addressed
the problem of wholesale blocking. Where the authorities targeted entire websites
without distinguishing between the legal and illegal content, it was found to be the
equivalent of banning a newspaper or television station. 141 This ‘deliberately
disregards the distinction between the legal and illegal information the website may
contain, and renders inaccessible large amounts of content which has not been
identified as illegal’. 142 The ECtHR examined blocking measures where whole
websites were blocked due to a single piece of content as well as continued blocking
even after infringing content had been removed.143 All these measures were found to
be unlawful, including in cases regarding prohibited e-books144 and information about
filter-bypassing technologies. 145 Shortcomings identified by the ECtHR include the
broad discretion to impose blocking measures afforded by law to an executive
agency, causing content to be blocked arbitrarily and excessively. Therefore, the
powers of state authorities must be clearly circumscribed to minimise the impact of
such measures on Internet access.146 The ECtHR also drew attention to the lack of
procedural guarantees, notably, the absence of court orders sanctioning blocking
measures, impact assessments prior to implementation, advance notification to
affected parties and proportionality assessments in court decisions subsequent to
implementation of blocking measures.147 Thus, although website blocking orders are
not per se contrary to Article 10 ECHR, this particular remedy is only available within
a balanced legislative framework, which contains robust safeguards against abuse.
136See, for further detailed discussion, Christophe Geiger and Elena Izyumenko, ‘Blocking Orders:
Assessing Tensions with Human Rights’ in Giancarlo Frosio (ed.), The Oxford Handbook of Online
Intermediary Liability, OUP, Oxford, UK, 2020, 566-585, Christophe Geiger and Elena Izyumenko,
‘The Role of Human Rights in Copyright Enforcement Online: Elaborating a Legal Framework for
Website Blocking’ (2016) 32(1) AUILR 43.
137 App no 10795/14 (ECtHR, 23 June 2020) (‘Kharitonov’). For commentary, see Elena Izyumenko,
‘European Court of Human Rights Rules That Collateral Website Blocking Violates Freedom of
Expression’ (2020) 15(10) JIPLP 774-775.
138 App nos 12468/15, 23489/15 and 19074/16 (ECtHR, 23 June 2020) (‘Flavus’).
139 App no 20159/15 (ECtHR, 23 June 2020) (‘Bulgakov’).
140 App no 61919/16 (ECtHR, 23 June 2020) (‘Engels’).
141 Kharitonov (n 137) para 38; Flavus (n 138) para 37.
142 ibid.; Bulgakov (n 139) para 34.

143 ibid para 30.
144 ibid.
145 Engels (n 140) para 29.
146 Kharitonov (n 137) para 38, 43.
147 ibid paras 43, 45.
23
In similar terms, although the CJEU has confirmed the availability of blocking
orders under EU law, the CJEU case law has also recognized users’ rights as
enforceable against injunctions that might curb users’ freedom of expression
online.148 First, in the McFadden judgement, the CJEU has confirmed that injunctions
against access providers to prevent the continuation of an infringement occurring
through their network is available only if such injunctions respect the balance
between the interests at stake and protect fundamental rights, with special emphasis
on the right to protection of intellectual property, the provider’s freedom to conduct
business, and the freedom of information of the recipients of the service. 149
According to the CJEU, in order not to impinge on fundamental rights, measures
adopted to implement a blocking order must be strictly targeted by (1) bringing to an
end a third party’s copyright or related right infringement (2) without thereby affecting
internet users using the online services in order to lawfully access information. 150
Otherwise, users’ freedom of information would be unjustly limited, and measures
cannot be issued. The CJEU has also acknowledged that the blocking of websites
involves the right of freedom of expression of internet access providers ‘by virtue of
[their] function of publishing its customers’ expressions of opinion and providing them
with information’. 151 In this context, the AG in UPC Telekabel made reference to
ECtHR precedent which provided ‘Article 10 guarantees freedom of expression to
“everyone”, [with] [n]o distinction [being] made in it according to the nature of the aim
pursued or the role played by natural or legal persons in the exercise of that
freedom’.152
Accordingly, fundamental rights must be considered by national courts when
balancing rights and interests in issuing blocking orders. In fact, ordinary courts and
administrative courts and authorities have been specifically referring to fundamental
right balancing, either referring to the ECHR, the EU Charter, 153 or national
Constitutions.154 In France and the UK, judges have been specifically discussing the
balancing between freedom of expression and information and right to property,
considering the limitations that blocking injunctions can impose on freedom of
expression. French courts held that in balancing freedom of expression as protected
by Article 10 of the ECHR and the rights of authors or producers, it should be
148 UPC Telekabel (n 24) para 57.

149 Mc Fadden (n 25) paras 80-101.
150 See UPC Telekabel (n 24) para 57.
151 C-314/12, UPC Telekabel Wien, 2013, Opinion of AG Villalón ECLI:EU:C:2013:781, para 82
(hereafter ‘Telekabel, Opinion of AG Villalón’). See also, on this issue extensively, Geiger and
Izyumenko ‘The Role of Human Rights in Copyright Enforcement Online’ (n 136) 43 ff.
152 Öztürk v Turkey App no 22479/93 (ECtHR, 28 September 1999) para 49.
153 See eg TGI Paris 17/13471 (n 69); Sony Music Entertainment (Ireland) & Ors v UPC
Communications Ireland Ltd [2016] IECA 231 (mentioning freedom to receive or impart information;
right to protection of personal data; and freedom to conduct a business); Newzbin2 (n 67) and EMI
Records Limited v Sky [2013] EWHC 379 (Ch).
154See for a review of references to specific fundamental rights by national courts—and exceptions—
Frosio and Bulayenko (n 1) 25-26.
24
considered that the latter suffer serious prejudice as a result of the hundreds of
thousands of visitors to the disputed sites. 155 Thus, French courts, after having
considered freedom of expression and information and, sometimes, also freedom to
conduct a business, upheld blocking measures as strictly necessary to preserve the
rights of the plaintiffs as they make it possible to prevent or stop massive copyright
infringement, while they are targeted towards precisely identified domain names and
limited in time. In the UK, courts have come down to similar conclusions. For
instance, in Newzbin2 the judge noted that the order was appropriate to protect the
property right ‘of the Studios and other copyright owners. Those interests clearly
outweigh the Article 10 rights of the users of Newzbin2, and even more clearly
outweigh the Article 10 rights of the operators of Newzbin2. They also outweigh BT's
own Article 10 rights to the extent that they are engaged’.156 In EMI Records, in the
context of website blocking orders directed to copyright-infringing BitTorrent
websites, the judge held again that IPRs ‘clearly outweigh the Charter Article 11
rights of the users of the Websites, who can obtain the copyright works from many
lawful sources’ as well as ‘the Article 11 rights of the operators of the Websites, who
are profiting from infringement on an industrial scale. They also outweigh the
Defendants' Article 11 rights to the extent that they are engaged’.157
The same balancing approach has been endorsed in the case of ‘live’ blocking. In
Football Association Premier League, a UK court has compared FAPL’s copyright,
access providers' freedom to conduct a business and internet users' freedom to
impart or receive information by finding that (i) FAPL, as well as its licensees BT and
Sky, had a legitimate interest in curtailing the infringement of its copyright; (ii) further,
given FAPL's role in supporting sport in the UK and given the substantial
contributions made by FAPL and its licensees to the UK economy, there was a
public interest in combatting infringements of its rights; (iii) meanwhile, the orders
sought would not impair the substance of the access providers’ right to conduct a
business as it would not interfere with the provision of their services to their
customers or require investment in new technology; 158 (iv) and the freedom of
internet users to impart or receive information did not extend to a right to engage in
copyright infringement.159
6.2. Proportionality of injunctions under EU law

According to the EU legal framework, measures imposed by blocking injunctions
must be (1) fair and equitable, (2) not be unnecessarily complicated or costly, (3) or
155 See TGI Paris 17/13471 (n 69).

156 Newzbin2 (n 67) para 200.
157 EMI Records (n 153) para 107.
158The orders would only impose additional operating costs on the access providers, while any risk of
reputational damage, particularly in the event of overblocking, was not considered to be significant.
159See Football Association Premier League Ltd v British Telecommunications plc [2017] EWHC 480
(Ch). See also McFadden (n 25) and UPC Telekabel (n 24) (referring to the users' right to (only) "access
information lawfully").
25
entail unreasonable time-limits or unwarranted delays; (4) effective, proportionate
and dissuasive; (5) applied in such a manner as to avoid the creation of barriers to
legitimate trade and (6) to provide for safeguards against their abuse. 160 In
consideration of Recital 41 of the ECD, which strives to balance different interests at
stake, an injunction under Article 18(1) therein should not impose an ‘excessive
obligation’ on the Internet service provider.161 In addition, Recitals 58 and 60 of the
ECD clarify that, ‘[i]n order to allow the unhampered development of electronic
commerce’, EU rules and the measures ‘must be clear and simple, predictable and
consistent with the rules applicable at international level’.162
Within the supernational framework above, national courts must assess the
proportionality of the measure, which is usually done on a case-by-case basis
according to several national standards, including effectivity, subsidiarity,
unavailability of alternative measures, substantial non infringing uses to avoid
website blocking, and avoidance of general monitoring. 163 Also, limitations on
temporal scope, more commonly in the case of dynamic—and live—injunctions,
might be applied by courts to avoid disproportionate application of the measures.164
Both to ensure fundamental rights compliance and proportionality of the
measures, blocking injunctions must address the risk of over- and under-blocking. A
number of different strategies have been emerging in several European jurisdictions.
(i) In France, case law makes rightholders responsible for informing intermediaries if
some of the ‘access roads’ to the illicit websites mentioned in the decision are no
longer active or give no longer access to infringing content. (ii) In Ireland, the
measures to address over-blocking are agreed in advance between the parties and
then approved by the Court. (iii) In Italy, dynamic injunctions usually balance
conflicting interests of rightsholders and access providers by limiting the scope of
injunctions so as to avoid overblocking.165 (iv) In the Netherlands, the absence of the
alleged infringers in the procedure urges the judge to be cautious about measures
concerning access to the internet. If an order or measure imposed as a result of
these proceedings should at any future time appear to be no longer compatible with
a fair balance between the fundamental rights concerned because of changed
circumstances, Dutch law provides sufficient possibilities for adequate protection of
interests protected by those fundamental rights which the CJEU has in mind in the
UPC Telekabel Wien judgment.166 (v) In the UK, courts must take into account the
risks of over- or under-blocking of access providers. In this respect, the orders must
‘contain a number of safeguards against abuse, such as permitting both the ISPs
160 IPRED, Art. 3.

161 Glawischnig-Piesczek (n 30) para 44 (discussing obligation of hosting providers).
162 ECD (n 14) Recital 60.
163 See, for a review of these national standards, Frosio and Bulayenko (n 1) 28-30.
164See, for a detailed comparative overview of the temporal scope of injunctions, Frosio and
Bulayenko (n 1) 34-35, 45.
165 See, e.g., Court of Milan, 3 September 2019. See also Frosio and Bulayenko (n 1) 30, fn 121.
166 Court of The Hague, BREIN vs Ziggo/XS4All, 11 January 2012, § 4.44.
26
and the operators of the Target Websites to apply to the Court to discharge or vary
the orders in the event of any material change of circumstances’.167 For example, (i)
where an IP address ceases to be a location that enables access to the infringing
content, or (ii) where a target website moves to an IP address where the server at
that IP address hosts a site or sites that are not part of a target website, the access
provider, or any affected third party, must be able to challenge the decision with the
court.168
Risk of overblocking is tightly scrutinized in ‘live’ blocking orders. In the UK, which
has more widely used this measure so far, the applicant (i) must reasonably believe
that any server notified for blocking has the sole or predominant purpose of enabling
or facilitating access to infringing streams; and (ii) must not know or have reason to
believe that the server is being used for any other substantial purpose. Further, to
reduce the risk of overblocking, the list of servers to be blocked is reset periodically
(in the later Premier League cases as often as weekly) in order to assure that
servers are not blocked for longer than necessary.169
Finally, an additional important factor to evaluate proportionality of blocking
injunction is their effectiveness in reducing infringement. Effectiveness of blocking
injunctions is not always addressed by national courts in Europe. However, it has
been considered by some. In particular, UK courts have reviewed whether the
injunctions were effective in multiple instances and found that the evidence indicates
that blocking orders are reasonably effective and cause a material reduction in the
number of UK users who access infringing websites.170 Again, in the Netherlands,
courts have been considering the ‘Alexa list’, which contains information about
websites from most to least visited, to test effectiveness of measures. 171 When
blocking injunctions were issued against ‘The Pirate Bay’, it went down on the list,
whereas, when these injunctions were lifted, it went back up again. Therefore, the
Court confirmed that the blocking of the website is actually an effective measure. 172
Also, in Finland, after the Market Court issues the order, the affected parties
themselves are responsible for monitoring the effectiveness of the injunction as well
as their necessity. 173 The Market Court can, then, assess the necessity of the
injunctions if affected parties either seek to renew, extend or challenge the order by
167 See Cartier Int’l v British Sky Broadcasting [2014] EWHC 3354 (Ch), para. 262 (‘Cartier 2014’).
168 ibid
169 See FAPL 2018 (n 105).
170See, e.g., EMI v Sky, para. [105]; Football Association Premier League Ltd, supra fn 105, para.
[49].
171See Rechtbank Midden Nederland C/16/448423/ KG ZA 17-382, 12 January 2018 (Stichting Brein
v. KPN B.V. and others) ECLI:NL:RBMNE:2018:114, para. 4.12.
172 ibid
173See Government’s Proposal 181/2015 vp, p. 56 as cited by Market Court, MAO:243/16, para. 57
and MAO:311/18, para. 49 (noting that the applicant is in the best position to monitor the
effectiveness of the injunctions).
27
filing an application to the court.174 Finally, some courts, in, Belgium, France, and
Ireland concluded that effectiveness does not require 100% success as long as the
remedy has a significant persuasive effect.175
7. Conclusions
The state of website blocking is in flux. Static blocking measures, traditionally
issued under a consolidated EU and national legal framework, have been
supplemented by dynamic blocking measures, including live blocking, to meet the
ever-expanding challenges that online piracy poses to intellectual property rights. In
particular, dynamic measures are meant to address the—widespread—infringement
of very sensitive economic interests online, such as inter alia the violation of rights
over live (sports) events.
However, the legal framework for dynamic measures is still quite fragmented.
Dynamic measures are available in most European jurisdictions but have been so far
issued in limited numbers, with the exception of the UK, also because courts might
be traditionally resistant to issue broad measures that apply to future infringements,
without the plaintiff seeking specific redress for each infringement. Recent CJEU
jurisprudence and EU legislation, however, might have created more room for such
measures by partially overcoming long standing principles that imposed on online
intermediaries a reactive, rather than proactive, role in curbing online infringement.176
Meanwhile, live blocking measures are available only in a few countries or, at least
their availability has not been tested yet before the courts of most European
jurisdictions. Also, scope and standards for blocking injunctions vary greatly among
European jurisdictions, which show a complex web of unharmonized approaches
that is sometimes hard to disentangle.177 In this regard, harmonization would be of
essence to guarantee both efficient IP enforcement and protection of competing
fundamental rights. However, given that courts in most jurisdictions appear to
carefully consider proportionality and the balancing of rights, further harmonization
would find already common standards on availability of injunctions to build upon.
Actually, the availability of static and dynamic website blocking injunctions is a
suboptimal solution from a human right perspective. It is forced on national and
international courts, such as the ECtHR and CJEU, by the need to find a proportional
equilibrium between competing rights—given the scale of the transaction costs of
online enforcement—according to the doctrine of ‘fair balance’ among fundamental
174 ibid
175See eg, in Belgium, Prés. civ. Bruxelles, 9 August 2013 (2014) A&M 499-508; Anvers, 26
September 2011 (2012) A&M 220; in France, TGI Paris 17/13471 (n 69) ; in Ireland, FAPL 2020 (n
104).
See eg, for review of these developments, Giancarlo Frosio, ‘Reforming the C-DSM Reform: a
176
User-Based Copyright Theory for Commonplace Creativity’ (2020) 52(6) IIC 709-750.
177For a comprehensive overview of this unharmonized implementation of blocking injunctions, see
Frosio and Bulayenko (n 1) 14-62.
28
rights. 178 According to this principle, as construed by the CJEU, the ECtHR, and
national courts, blocking injunctions are available only if they are strictly targeted to
bring the infringement to an end and if they do not disproportionately impinge on
fundamental rights, do not impose ‘excessive obligations’ on intermediaries and
address the risk of over- and under-blocking. Effectiveness should be an additional
requirement to justify blocking injunctions according to requirements above, and
should be more consistently applied by national courts. Websites blocking is an
highly invasive practice, as entire website are blocked, rather than targeted
information taken down, thus it should be enforced cautiously according to a law and
economics cost/benefit analysis only if the positive externalities overcome the
negative ones, both for users and businesses.
178See e.g., C-70/10, Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs
SCRL (SABAM), 2011, ECLI:EU:C:2011:771, paras 43–4; C-360/10, Belgische Vereniging van
Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV, 2012, ECLI:EU:C:2012:85, para
52; UPC Telekabel (n 24) para 49 ; C-131/12, Google Spain SL v Agencia Espanola de Protección de
Datos, 2014, ECLI:EU:C:2014:317, para 96. See also Christina Angelopoulos, ‘Sketching the Outline
of a Ghost: The Fair Balance between Copyright and Fundamental Rights in Intermediary Third Party
Liability’ (2015) 17(6) Info 87; Knud Wallberg, ‘Notice and Takedown of Counterfeit Goods in the
Digital Single Market: A Balancing of Fundamental Rights’ (2017) 12(11) JIPLP 922–36.
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WEBSITE BLOCKING INJUNCTIONS IN FLUX: STATIC, DYNAMIC, AND LIVE

Giancarlo Frosio and Oleksandr Bulayenko1

2. BRIEF TAXONOMICAL AND TECHNICAL REFERENCES

3. SOURCES OF BLOCKING INJUNCTIONS

3.2. The jurisprudence of the CJEU

16 InfoSoc Directive (n 3) Recital 59.

23 Cf. Nordemann (n 12) 362-363.

3.3. Administrative Orders

3.4. Soft law

34 See Law 2121/1993, Art. 66E.

4. STATIC, DYNAMIC AND LIVE BLOCKING INJUNCTIONS: AVAILABILITY AND

4.1 Static blocking injunctions

42 See ISPA Code of Conduct, available at https://www.ispa.be/code-conduct-fr/

4.2 Dynamic blocking injunctions

82 See Frosio and Bulayenko (n 1) 37.

106 FAPL 2018 (n 105) para 25.

112 UPC Telekabel (n 24) para 57.

115 Ziggo et al (n 13).

6. BALANCING OF RIGHTS AND PROPORTIONALITY OF MEASURES

6.1 Balancing of competing fundamental rights

120 TJ Paris, 16 janvier 2020, RG 19/14013.

134 See Cengiz (n 127) para 54.

139 App no 20159/15 (ECtHR, 23 June 2020) (‘Bulgakov’).

140 App no 61919/16 (ECtHR, 23 June 2020) (‘Engels’).

141 Kharitonov (n 137) para 38; Flavus (n 138) para 37.

142 ibid.; Bulgakov (n 139) para 34.

148 UPC Telekabel (n 24) para 57.

6.2. Proportionality of injunctions under EU law

155 See TGI Paris 17/13471 (n 69).

160 IPRED, Art. 3.

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