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(1) In GS Media, the ECJ had to decide whether a link to materials that the copyright holder didn’t authorize were infringing communication to the public. In this case, the defendant is a popular Dutch blog that posted links to photos meant for publication in the Dutch version of Playboy magazine, but which were leaked on an Australian server by an unknown uploader. Sonoma noticed GS Media of the infringing nature of the linked material—asking for removal of the link multiple times. (2) In finding GS Media liable for copyright infringement, the Court noted however that the alleged infringer can only be held responsible for the infringing act if he had sufficient knowledge of the unauthorized publication of the linked work. (3) Also, the court established a rebuttable presumption of knowledge in cases of links made for...

(1) The ECJ had to consider the potential liability of Mr. Mc Fadden--running a business selling lighting and sound systems--for the use by a third party of the wireless local area network (WLAN) operated by Mc Fadden in order to make a phonogram produced by Sony Music available to the general public without authorisation. Mc Fadden operated his wireless LAN with anonymous access and free of charge in the vicinity of his business. Access was intentionally not protected in order to draw the attention of customers of near-by shops, of passers-by and of neighbours to his company. The referring court wanted to know whether the access provider exemption from liability might preclude from finding Mc Fadden liable, either directly or secondary. (2) Against this factual background, the ECJ concluded that (a) making a network...

(1) Maximillian Schrems, an Austrian citizen and Facebook user, lodged a complaint with the Irish Data Protection Commissioner saying that in light of Edward Snowden's revelations concerning the activities of the United States intelligence services, the law and practice of the United States did not offer adequate protection against surveillance by public authorities of the data transferred to that country. In this case, data provided to Facebook’s Irish subsidiary is transferred to servers located in the United States. (2) The Court found that European data was not sufficiently protected in the United States and invalidated the Commission Decision 2000/520/EC that created the transatlantic U.S.-EU Safe Harbor agreement. The EU-US Safe Harbor agreement had been in place for 15 years and enabled U.S. companies to...

(1) The ECJ had to decide whether linking to live internet streams of sport events infringed on the exclusive related rights of broadcasting organizations. Prior to this case, the Court decided linking related issues in Svensson and Bestwater (see below). The request for a preliminary ruling came from the Supreme Court of Sweden. The online broadcaster C More Entertainment challenged the legality of Mr. Sandberg’s website hosting links enabling users to circumvent a paywall to watch its live streams of hockey matches. The ECJ concluded that national legislation may extend the exclusive right of the broadcasting organisations to acts of communication to the public encompassing broadcasts of sporting fixtures made live on internet. (2) The referring court decided to drop a number of questions concerning whether placing...

(1) The Court issued a reasoned order ex Article 99 of the Rule of Procedure of the European Court of Justice, which applied the findings of the Svensson decision (see below). (2) The case concerned the lawfullness under EU law of the practice of inserting on websites clickable links that use the technique of "framing" and through which the user was directed to a film on which BestWater maintained the exclusive rights. BestWater manufactures and markets water filter systems. For advertising needs, she produced a short film on the water pollution. The film was available on the video platform "YouTube" without Bestwater's consent. Mebes and Potsch are independent sales agents who act on behalf of a competitor of BestWater International. They each have a website where they promote the products marketed by their client...

The ECJ stated that European libraries may digitize books in their collection without permission from the rightholders. The decision confirmed a previous opinion of the ECJ's Advocate General. (1) The ECJ noted that European law "must be interpreted to mean that it does not preclude Member States from granting to publicly accessible libraries . . . the right to digitise the works contained in their collections . . . ." However, several caveats attach to this general statement. First, such act of reproduction must be necessary for the purpose of making those works available to users, by means of dedicated terminals, in public libraries, for the purpose of research or private study. (par. 46). Second, the ECJ recognizes this right provided that "specific acts of reproduction" are involved. Therefore, the public library...

The ECJ clarified the notion of "information society services" within the meaning of the Directive 2000/31/EC and the application of rules of civil liability for defamation to those intermediaries. The case involved an action brought by an individual for defamation against a daily national newspaper, which published the defamatory articles online. The ECJ concluded that (1) Directive 2000/31/EC must be interpreted as meaning that the concept of ‘information society services’ covers the provision of online information services for which the service provider is remunerated, not by the recipient, but by income generated by advertisements posted on a website; (2) Directive 2000/31/EC does not preclude the application of rules of civil liability for defamation. In particular, the limitations of civil liability specified in...

(1) ruling that "an internet search engine operator is responsible for the processing that it carries out of personal data which appear on web pages published by third parties.” Thus, under certain circumstances, search engines can be asked to remove links to webpages containing personal data. (see also CIS blog post) (2) On November 26, 2014, the Article 29 Data Protection Working Party issued the Guidelines on the Implementation of the CJEU Judgment on Google Spain v. Costeja, 14/EN WP 225, which are summarized in this CIS blog post.

The ECJ stated that EU law must be interpreted as not precluding a court injunction that does not specify the measures which an access provider must take to block access to a website making available copyrighted material without the rightsholders’ permission. Additionally, the ECJ concludes that blocking orders can be imposed on access providers when they can avoid incurring coercive penalties for breach of that injunction by showing that they have taken all reasonable measures. According to the ECJ, measures are deemed “reasonable” provided that (i) they do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available and (ii) they have the effect of preventing unauthorized access to copyrighted materials or, at least, of seriously discouraging internet users from...

The ECJ decided that links to authorized works freely available online do not infringe the E.U.-recognized exclusive right of communication to the public. The case involved journalists claiming that the website Retriever Sverige had improperly linked to news articles they had authored, thereby making those articles available to the public without permission, in violation of copyright law. (1) For the first time, the ECJ announced a rule that links communicate works to the public, which is a copyright owner’s sole prerogative under EU law. However, the court said that those links are not infringing and do not need additional authorization from the copyright owner unless they make the work available to a new public (par. 25-28). A new public must include people other than those who can access the work thanks to the...

This case considered the relative jurisdiction of EU Member States under the Brussels I convention in a copyright case involving online CD sales. It concluded that mere site accessibility, rather than targeting, could be enough to support jurisdiction. It noted that copyright was distinct from other claims previously considered by the court, both because of specific provisions in the Regulation and because copyright arises simultaneously in all Member States. As the court explained its reasoning, "Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in the event of alleged infringement of copyrights protected by the Member State of the court seised, the latter has...

(1) The ECJ was asked to decide whether sites that link to streams are responsible for communicating copyrighted works to the public. In this case, the defendant operated a website based on free, unauthorised live streaming of television programmes, including those protected by the claimant’s copyright. (2) The ECJ confirmed that any retransmission of a terrestrial television broadcast over the Internet constitutes a communication to the public. In particular, the concept of ‘communication to the public’ covers a retransmission of the works included in a terrestrial television broadcast (a) where the retransmission is made by an organisation other than the original broadcaster, (b) by means of an internet stream made available to the subscribers of that other organisation who may receive that retransmission by logging...

The ECJ had to decide whether a Belgian court could require Netlog, the Belgian equivalent to Facebook, to immediately cease making available works from SABAM‘s repertoire by installing a filtering system, which would oblige Netlog to actively monitor all the data of its users and to prevent future IPR-infringements. The ECJ decided that European law must be interpreted as precluding a national court from issuing an injunction against a hosting service provider which requires it to install a system for filtering: (1) information which is stored on its servers by its service users; (2) which applies indiscriminately to all of those users; (3) as a preventative measure; (4) exclusively at its expense; and (5) for an unlimited period, (6) which is capable of identifying electronic files containing musical, cinematographic...

This CJEU ruling applied an internal EU regulation, the Brussels regulation, to adjudicate the relative jurisdiction and powers of EU Member States in cases involving personality rights. It combined two cases. In eDate Advertising, a German claimant convicted of murdering a well-known actor in 1993 complained of an Austrian website that reported his name and conviction history. In Martinez, a French actor Olivier Martinez alleged infringement of the right to his image in a gossip article in a UK online news source. In both cases, defendants argued that national courts could not enjoin publication outside their jurisdictions. The CJEU's Grand Chamber ruled, "Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial...

Considering the use of keywords as a trigger for contributory liability of an hosting provider that operates an online marketplace. The ECJ found that an hosting provider cannot benefit from the E-Commerce Directive safe harbours (1) if it has played an active role in relation to the sale activities of the direct infringer, or (2) if it has constructive knowledge of unlawful sales carried out throughout its services. (3) The Court clarified that "awareness" of illegal content can in particular be obtained by a notice that is "sufficiently detailed and adequately substantiated". A hosting service provider may thus have to act (by removing or disabling access to content) following the receipt of a notice. A notice may concern any type of illegal content. (4) The ECJ interpreted Article 11 of the Enforcement Directive as...

In this case, the CJEU applied the internal EU Brussels I regulation to assess the relative jurisdiction and authority of EU Member State courts in two cases involving contracts for online travel booking. The CJEU defined a targeting-based test for jurisdiction over Internet entities in this situation, and said that mere accessibility of a website is not sufficient to create jurisdiction. In the Court's words, "In order to determine whether a trader whose activity is presented on its website or on that of an intermediary can be considered to be ‘directing’ its activity to the Member State of the consumer’s domicile, within the meaning of Article 15(1)(c) of Regulation No 44/2001, it should be ascertained whether, before the conclusion of any contract with the consumer, it is apparent from those websites and the trader...

Considering the contributory liability for trademark infringement of an hosting provider auctioning words corresponding to the plantiffs' trademarks while operating an online advertising service. The ECJ found that the provider does not infringe trademark law by allowing advertisers to purchase potentially infringing keyworks trough their services. In particular, (1) a provider, which (a) stores, as a keyword, a sign identical to a trademark and (b) organizes the display of advertisements on the basis of that keyword does not use the sign within the meaning of trademark law. (2) Additionally, the safe harbors provided by Directive 2000/31/EC apply if the service provider (a) has not played an active role that gives it knowledge of, or control over, the data stored or (b) having obtained knowledge of the unlawful nature...

Promusicae sought an order from a commercial court in Spain to force Telefónica, a Spanish ISP, to divulge identities corresponding to IP addresses that Promusicae had collected in its own investigations of illegal file sharing. The Spanish court granted Promusicae’s request. Telefónica appealed to the ECJ in regards the interpretations of the Community Law, Articles 15(2) and 18 of Directive 2000/31, Article 8(1) and (2) of Directive 2001/29, Article 8 of Directive 2004/48 and Articles 17(2) and 47 of the Charter on the limits of ISPs’ responsibilities to assist in criminal investigation versus civil proceedings. Balancing ISP customers’ privacy with content industry’s ability to protect its intellectual property, theECJ held that European law alone does not require ISPs to disclose their subscribers’ identities to...

(1) The ECJ had to decide whether a Belgian collective rights managment organization (SABAM) could require an internet service provider, namely Scarlet and Tiscali, to install a filtering system with a view to preventing the illegal downloading of files. (2) The ECJ ruled that EU law must must be interpreted as precluding an injunction made against an internet service provider which requires it to install a system for filtering (i) all electronic communications passing via its services, in particular those involving the use of peer-to-peer software; (ii) which applies indiscriminately to all its customers; (iii) as a preventive measure; (iv) exclusively at its expense; and (v) for an unlimited period, (vi) which is capable of identifying on that provider’s network the movement of electronic files containing a musical...

Performing rights organization LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten ("LSG") asked Tele2 to disclose users’ temporary IP addresses as personal traffic data, for the purpose of civil proceedings for alleged infringements of their exclusive copyrights. The ECJ relied its reasoning heavily on the Promusicae case and stated that: (1) Access providers which merely provide users with Internet access, without offering other services or exercising any control over the services provided to users, must be regarded as intermediaries under Article 8(3) of Directive 2001/29; (2) under the principle of proportionality, ISPs’ duty of disclosure gives way to users’ privacy rights in this case, where temporary IP addresses must not be stored for the purpose of civil litigations in copyright infringement cases.