The Role of Human Rights in Copyright Enforcement Online: Elaborating a Legal Framework for Website Blocking

Abstract

In recent years, intellectual property enforcement by ordering Internet access providers to block infringing websites has been rapidly evolving in Europe. Understandable from the perspective of rightholders searching for the most efficient ways to stop infringing activities, this increasing tendency to seek for website blocking raises several interrelated legal questions. Those range from the extent to which new enforcement models should burden the freedom to conduct a business of intermediaries to how this practice affects the ability of Internet users to access information of their choice and exercise their freedom of expression in the online environment. Interestingly, the requests for blocking injunctions have also provoked counter-reactions, initiating a “breakthrough” in the European judiciary because of the recognition of user rights as enforceable rights of equal value to those of rightholders. This article approaches these (and other) questions from the perspective of three fundamental rights that play a major role in website blocking cases and which, according to judicial practice, need to be balanced against each other: the users’ freedom of expression, the ISPs’ freedom to conduct a business, and the copyright holders’ right to property. To this end, it analyses the recent key decisions on the matter from two major European courts – the Court of Justice of the European Union and the European Court of Human Rights – reflecting further on their actual and potential impact on national decisions. Using the context of this European case law to elaborate standards applicable in the field of website blocking, this article ultimately questions appropriateness of currently prioritised enforcement strategies, pointing to the need to explore possible alternative solutions.

Keywords: Enforcement of Copyright, Human and Fundamental Rights, Website Blocking, Freedom of expression, Freedom to conduct business