Legislative Decree Stb. 2007, 108, Law implementing Enforcement Directive (2004/48/EC); Article 26d Dutch Copyright Act

Article 26d of the Dutch Copyright Act contains a rule that allows courts to subject an intermediary to an injunction without the intermediary having to commit a tort. The article reads: “At the request of the author, the court can order intermediaries whose services are used by third-parties to infringe on copyright, to stop providing the services that are used to infringe.” It thus provides a basis for a particular type of injunction that is independent from any liability under tort law. According to the Explanatory Memorandum to this article, courts do have to take into account the degree in which the intermediary is involved in the infringement, and the proportionality between the court order’s aim and the loss or damage that is suffered by the intermediary as a consequence of the court order.  If the copyright-holder can just as well sue the infringer, then the court should reject the request.