Blocking injunction requisites - The balancing of rights and other aspects of blocking injunctions towards intermediaries

Abstract: The increased significance of intellectual property rights, rapid development of easier dissemination of protected works and the subsequent concern for protection has lead right holders to continuously seek new ways of countering online piracy. In the past decade, a new regime of targeting online intermediaries with blocking injunctions has emerged, supported by the legislative powers of the European Union. Without actually being liable for infringement, intermediaries find themselves court ordered to implement blocking injunctions purposed to discourage Internet users from accessing illegal content. This phenomenon raises a multitude of issues concerning the appropriateness of bestowing obligations upon an innocent intermediary and balancing property right interests with respect for fundamental rights such as the freedom of expression and information, freedom to conduct a business and data privacy protection concerns. These issues are highlighted when trying to discern the legal requisites for issuing a blocking injunction, given how the interpretation of a common legal framework has diverged in the member states applying them. A study of the European Court of Justice’s case law paired with the doctrine surrounding the legal framework reveals a core set of requisites that must be taken into account for the court tasked with assessing a blocking order application. Of these requisites, the proportionality assessment surface as the particularly complex issue. However, its complexity serves to highlight the importance of merely taking all the listed requisites and factors into account, while the balancing act contained within this assessment remains a question of legal review in casu. Further clarity and legal foreseeability as to the particular requisites and their consideration is thus required for the sake of harmonization, but the proportionality assessment is not in such a dire need of restructuring as some may argue. The well-established nationality of especially copyright protection, where differing legal traditions affect the assessment, poses more of a hindrance to a clear and foreseeable harmonization of assessing blocking injunctions.