Jipitec 5 2

2 | 2014
Volume 5 (2014)
Issue 2
ISSN 2190-3387
Articles
Law
and Electronic Commerce
Information Technology,
Intellectual Property,
Journal of
Oblivion, Erasure and Forgetting in the Digital Age
by Aurelia Tamò and Damian George

The Implementation of the Media Services Directive by National
Regulatory Authorities: National Responses to Regulatory Challenges
by Jenny Metzdorf
A Qualitative Study on the Adoption of Copyright Assignment Agreements

(CAA) and Copyright License Agreements (CLA) within Selected FOSS Projects
by Sylvia F. Jakob
Proportionality of Website Blocking: Internet

Connectivity Providers as Copyright Enforcers
by Pekka Savola
Social Networking Sites’ Terms of Use Addressing Imbalances in the

User-Provider Relationship through Ex Ante and Ex Post Mechanisms
by Ellen Wauters, Eva Lievens & Peggy Valcke
Book Review
Sebastian Haunss, Conflicts in the Knowledge Society

The Contentious Politics of Intellectual Property
by Axel Metzger
Editors:
Thomas Dreier
Axel Metzger
Gerald Spindler
Lucie Guibault
www.jipitec.eu
Miquel Peguera
Journal of Intellectual Property,
Information Technology and
Electronic Commerce
Table Of Contents
Law
Volume 5 Issue 2, September 2014 Articles
www.jipitec.eu
contact@jipitec.eu Oblivion, Erasure and Forgetting in the Digital Age
A joint publication of: by Aurelia Tamò and Damian George 71
Prof. Dr. Thomas Dreier, M. C. J.,
Karlsruhe Institute of Technology,
Vincenz-Prießnitz-Str. 3, The Implementation of the Media Services Directive
76131 Karlsruhe
by National Regulatory Authorities: National
Prof. Dr. Axel Metzger, LL. M., Responses to Regulatory Challenges
Institute for Legal Informatics, by Jenny Metzdorf 88
Leibniz Universität Hannover,
Königsworther Platz 1,
30167 Hannover
Prof. Dr. Gerald Spindler, A Qualitative Study on the Adoption of Copyright
Dipl.-Ökonom, Georg-August- Assignment Agreements (CAA) and Copyright License
Universität Göttingen, Agreements (CLA) within Selected FOSS Projects
Platz der Göttinger Sieben 6, by Sylvia F. Jakob 105
37073 Göttingen
Karlsruhe Institute of Technology,

Leibniz Universität Hannover, and Proportionality of Website Blocking:
Georg-August-Universität Göttingen Internet Connectivity Providers as Copyright Enforcers
are corporations under public law,
by Pekka Savola 116
and represented by their respective
presidents.
Editors:
Thomas Dreier Social Networking Sites’ Terms of Use: Addressing
Axel Metzger Imbalances in the User-Provider Relationship
Gerald Spindler through Ex Ante and Ex Post Mechanisms
Lucie Guibault by Ellen Wauters, Eva Lievens & Peggy Valcke 139
Miquel Peguera
Board of Correspondents:
Graeme Dinwoodie
Christophe Geiger
Ejan Mackaay
Giovanni M. Riccio Book Review
Cyrill P. Rigamonti
Olav Torvund Sebastian Haunss, Conflicts in the Knowledge Society
Mikko Välimäki The Contentious Politics of Intellectual Property
Rolf H. Weber by Axel Metzger 152
Andreas Wiebe
Raquel Xalabarder
Editor-in-charge for this issue:
Axel Metzger, Hannover
Administrative Editor:
Philipp Zimbehl
Layout:
Philipp Zimbehl
ISSN 2190-3387
Funded by
Oblivion, Erasure and Forgetting

in the Digital Age
by Aurelia Tamò and Damian George
Aurelia Tamò is a PhD Candidate, Chari of Information and Communication Law, University of Zurich
Damian George is a junior associate at Nobel & Hug attorneys at law in Zurich
Abstract: In light of the recent European be understood as a generic term, bringing together
Court of Justice ruling (ECJ C-131/12, Google Spain existing legal provisions: the substantial right of
v. Spanish Data Protection Agency), the “right to be oblivion and the rather procedural right to erasure
forgotten” has once again gained worldwide media derived from data protection. Hereinafter, the article
attention. Already in 2012, when the European presents an analysis of selected national legal
Commission proposed a right to be forgotten, this frameworks and corresponding case law, accounting
proposal received broad public interest and was for data protection, privacy, and general tort law as
debated intensively. Under certain conditions, well as defamation law. This comparative analysis
individuals should thereby be able to delete personal grasps the practical challenges which the attempt
data concerning them. More recently – in light of to strengthen individual control and informational
the European Parliament’s approval of the LIBE self-determination faces. Consequently, it is argued
Committee’s amendments on March 14, 2014 – the that narrowing the focus on the data protection
concept seems to be close to its final form. Although law amendments neglects the elaborate balancing
it remains, for the most part, unchanged from the of conflicting interests in European legal tradition.
previously circulated drafts, it has been re-labelled as It is shown that the attempt to implement oblivion,
a “right of erasure”. This article argues that, despite erasure and forgetting in the digital age is a complex
its catchy terminology, the right to be forgotten can undertaking.
Keywords: Right to be forgotten, oblivion, erasure, privacy, data protection, defamation, autocomplete sugges-
tions, notice and take down, EU data protection directive, data protection reform, data protection
regulation, ECJ C-131/12 Google v. Spain
© 2014 Aurelia Tamò/Damian George
Everybody may disseminate this article by electronic means and make it available for download under the terms and
conditions of the Digital Peer Publishing Licence (DPPL). A copy of the license text may be obtained at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8.
Recommended citation: Aurelia Tamò and Damian George, Oblivion, Erasure and Forgetting in the Digital Age, 5 (2014) JIPITEC
71, para. 1.
A. Introduction memory of the Internet. Considering that digital

abstinence is not an option, users are expressing an
1 Every individual has experienced episodes in his increased fear of being haunted by their digital past.1
life he enjoys remembering (and having others
remember), and others that he would like to forget 2 The European Commission (EC) claims to have
(or have others forget). As individuals increasingly recognized the problem and recently proposed a
make frequent public use of the Internet, users have “right to be forgotten and erasure” as part of the
become aware of the potential harm persistent revision of the 1995 European Data Protection
information can cause when stored on the eternal Directive2 (Directive 95/46/EC) principles. In light
of the increased online activities and opaque privacy
2 71 2014
Aurelia Tamò and Damian George
policies of web services, the EC wants to strengthen mostly used retroactively (ex post), data protection
the control and digital rights of individuals. tries predominantly to guarantee the protection in
Therefore, users should be given the right to have advance (ex ante) by considering the processing of
their data fully removed.3 data as privacy infringing “by default” and therefore
making processors adhere to data quality principles.
3 Legal scholars in Europe and the US have debated In other words, data protection law
the implications of an online right to be forgotten.
The first comprehensive approach in this regard was has introduced the default rule that the handling of personal
taken by Mayer-Schönberger in his oeuvre “Delete”.4 data is per se an intrusion unless guiding principles were
The concept of deletion has since been central to followed like the purpose limitation principle, the fairness
principle and other safeguards like a right of access to one’s
the academic debate, which focuses on the legal,
own data. 9
philosophical and sociological foundations as well
as potential implications of a policy response.
8 In the European Union, the processing of personal
data must not only fulfil the guiding principles
4 In this article we approach the topic at hand from
of data quality as provided for in Art. 6 Directive
a European legal tradition perspective, leaving
95/46/EC but must also be legitimate. The criteria
aside the US-American concepts in this respect.
for making data processing legitimate are listed in
Nevertheless it should be mentioned briefly that the
Art. 7 Directive 95/46/EC. One important criteria is
US has been rather critical of the concept of the right
consent. However, despite consent being regarded as
to be forgotten.5 In particular the implementation
a promising tool, the reliance upon consent as a basis
of the so-called “Eraser Law” (SB 568, California
of justification for the processing of data through
Business & Professions Code Sec. 22581) in California
private parties has not been successful in providing
was controversially discussed in the media.6
the intended self-control of the users.10 The EU’s
data protection reform efforts strive – amongst
5 The focus of this article lies on interactions among
other things – to increase the individual’s control
private parties, omitting conflicts arising out of
by clarifying, and possibly strengthening, its rights.11
government activities. We will elaborate throughout
One of these reinforced rights is currently known
this article that one should not restrict the debate
under its original terminology, the “right to be
to the legal provisions but must simultaneously
forgotten”. Thereby, the EU attempts to strengthen
draw insights from the elaborated case law. We will
the individual’s self-determination12 with regard to
support this approach by showing that European
the processing of his personal data.
Member States have dealt with questions relating to
oblivion and erasure in the age of online activities
and interactions by continually balancing the
conflicting interests according to long-established II. The Right of Oblivion vs.
norms and concepts. the Right to Erasure
9 In both the literature and political discussions, there
B. Oblivion, Erasure and Forgetting is a lack of uniformity when it comes to defining
– Understanding the Concepts the overall concept of “deletion” of personal data.
While some use the terms “the right of oblivion”,
Behind the Terminologies “the right to forget”, “the right to be forgotten”
or the “right to erasure” as synonyms, or at least
sometimes interchangeably,13 others differentiate
I. Privacy Protection in Europe among the underlying concepts based on their legal
rationale and scope.14
6 Before discussing new approaches for protecting the
individual’s privacy with data protection tools, we 10 In particular, a distinction between the right of
shall briefly put data and privacy protection into oblivion and the right of erasure can add value to
context. the maze of terminologies:
7 The term “data protection” might be misleading 11 First of all, the right of oblivion – or le droit a l’oubli
since the protected good is not the data itself but the resp. il diritto al’oblio according to its French and
data subject’s fundamental privacy rights.7 While the Italian root15 – has historically been applied in
protection of privacy, and the individual’s right to severe cases of (potential) defamation and breach
personality in particular, have long been discussed of privacy of (mostly) ex-convicts.16 The right offers
and contested in national legislations in Europe, deletion of some public data that are no longer
data protection laws have been evolving only since newsworthy, which highlights the importance of
the second half of the twentieth century.8 Unlike the time component, i.e. the period elapsed between
mechanisms that protect personality, which are the creation of the public data and the request for
oblivion.17 The rationale behind the concept of
2 72 2014
oblivion is found in the fundamental respect for advocates in California, where a so-called “Erasure
privacy.18 It aims to prevent potential harm to Bill” is been debated for teens and children using
“dignity, personality, reputation, and identity” of social networking sites.24
an individual.19
17 Defining the scope and boundaries of the right
12 Secondly, the right of erasure provides the data to be forgotten has proven to be a difficult task
subject with a right to demand the removal of not only at a political level but also among legal
personal data that is being processed by third scholars. According to Koops, Reding’s speech
parties.20 This right is rooted in the idea that the data indicates that the right to be forgotten is already
subjects should be able to infer in the data processing part of the current data protection law in Europe,
(e.g. when the processing is illegitimate) and that but it still needs to be reinforced. This argument
the data subject’s consent to the processing of his is based on the Vice-President’s statement that
personal data should be revocable.21 Put in a broader the right to be forgotten shall “strengthen” the
context, the goal is to re-balance power between rights of individuals. Therefore, the right to be
data subjects and data processors. The data subject forgotten is seen as a mere support of the right to
herewith becomes a right holder over its personal erasure, which is already established in the current
data. Directive 95/46/EC.25 However, according to Koops,
two main dimensions, encompassing perspectives
13 Thus, the aim of each right is different: While on the right to be forgotten in the literature, must
the right of oblivion, as a right derived from the be distinguished: these comprise, first, Mayer-
fundamental respect for privacy and personality, Schönberger’s pioneering vision of expiration dates
is based on a lengthy tradition of balancing for personal data, or a right to have data deleted
contradicting interests, the right of erasure can be in due time and, second, the dimension of oblivion,
seen as a way of enforcing a substantial claim, i.e. the granting individuals a “fresh start” when news seem
claim that a certain way of processing personal data no longer newsworthy, and enabling the individuals
is a violation of data protection principles. self-development and freedom to speak, write and
act.26
14 So while the scope of the right to oblivion is limited
to outdated data, the right to erasure potentially 18 Another approach to distinguish the right to be
applies to any data whose processing violates data forgotten has been taken by Weber, who outlines
protection laws. As it is shown in below, these two the difference between the active – right to forget
concepts can overlap. – and passive – right to be forgotten – verb tense.
Weber states that the difference lies in the time
component: while the right to forget requires a past
III. The Right to Be Forgotten event that has occurred a long time ago, the right
to be forgotten allows any data subject to claim the
deletion of their data regardless of the length of time
1. Scope and Boundaries elapsed.27
15 Since the announcement of an EU-wide right to be 19 Less focused on the wording and grammatical
forgotten by the EC, discussions have circled around distinction itself, Rouvory differentiates between
the rationale and scope of such a right. In 2012, the the perspectives of the parties involved in the act of
EC stated that all data must be deleted whenever forgetting. While the right to be forgotten is directed
the data subjects no longer want “their data to be at third parties and their duty to forget, the right to
processed and there are no legitimate grounds for forget is needed for the individual itself, to be able
retaining it”.22 In a speech given in early 2013, Vice- to forget his own past.28
President of the EC Reding clarified that “the right to
be forgotten cannot be absolute just as the right to 20 Conceptually, we agree with Ausloos’s and Ambrose’s
privacy is not absolute. There are other fundamental claim that the right of oblivion and the right to
rights with which the right to be forgotten needs erasure are “two interpretations of the right to be
to be balanced – such as freedom of expression and forgotten”.29 The authors maintain that the right to
freedom of the press.”23 be forgotten can be interpreted as a combination of
both concepts.30
16 As the legislative background of the right to be
forgotten (even if now re-labelled as a “traditional”
right of erasure, cf. B.III.2) implies, its creation
2. Evolution of Art. 17 General
resulted from the increased concern regarding how Data Protection Regulation
especially the younger generation makes use of
social networking platforms. These concerns have 21 By reinforcing the idea that “individuals should
not only been raised in Europe but have also found have control of their personal data”, Art. 17 of the
proposed General Data Protection Regulation31
2 73 2014
(Regulation) can be seen as a step towards a more Furthermore, Art. 17 (1) (b) explicitly states, that
user-control-based approach in data protection and “other legal grounds for the processing” can restrict
an attempt to reinforce the principle of informational the data subject’s right to erasure. Of special interest
self-determination in the digital age. Art. 17 (1) of the is also Art. 17 (1) (c), which, in combination with
Regulation states that the “data subject shall have Art. 19, strengthens the individual’s rights by
the right to obtain from the controller the erasure allowing the data subject to object at any time to the
of personal data relating to them and the abstention processing of personal data, unless the controller is
from further dissemination of such data, especially able to demonstrate a compelling legitimate ground
in relation to personal data which are made available for such processing.37
by the data subject while he or she was a child”
when the grounds listed in littera (a) to (d) apply. 25 The pressing question with respect to the right to be
However, the subordinate clause “especially in forgotten is to what extent the intensive lobbying
relation to personal data which are made available has altered the original scope and outreach of Art.
by the data subject while he or she was a child” was 17 of the Regulation. One striking alteration is that
deleted by the Rapporteur, Albrecht, in his Draft the term “right to be forgotten” has been erased and
Report, 2012/0011(COD), 17.12.2012 as he feared replaced by the previously already used terminology
that such a sub-clause would imply limitations on “right of erasure”.38 Yet, except for the change of
the applicability of the right to be forgotten with terminology, Art. 17 remains mostly true to its draft
respect to adults. versions of 2013. Especially the core provisions
that strengthen the position of users remained
22 On the basis of a compromised text by the Irish unchanged. The same holds true for Art. 17 (1b),
Presidency, on May 31 and June 21, 2013, the Council which allows individuals to withdraw consent to
of the European Union published an amended the data processing at any time. However, Art. 17
version of its initial proposal.32 The long-awaited vote (2), concerning the data controller’s responsibility
of the European Parliament’s Committee on Civil to take reasonable steps to inform third parties to
Liberties, Justice and Home Affairs (LIBE Committee) follow the demand of erasure when data has been
was held on October 21, 2013. These compromised made public without proper justification has been
amendments of the Draft Regulation were almost slightly defused.39 The major amendment concerns
unanimously approved by the Parliament on March the deletion of the last sentence of the original
14, 2014. The Council of the EU will negotiate the paragraph, which stated that data controllers
final text with the Parliament and the EC (trilog) and are responsible for publications by third parties
await the final approval by the Parliament once a when they authorized the third party to do so.
text is agreed upon. Furthermore, the altered provision does not request
data controllers to take all reasonable steps to inform
23 The Regulation subsumes under the term right to the third party about the erasure request but only
be forgotten the data subject’s right – on a number reasonable steps. How those amendments will affect
of grounds – to delete personal data. One of those the data controllers’ responsibilities, especially in
grounds is the “withdrawal of consent by which light of the mostly unchanged Recital 54, is unclear.
the data controller holds the data”.33 This right is
currently enacted in Art. 17 (1b) of the Regulation.
Even though already today Art. 14 Directive 95/46/ C. Implementing Erasure and
EC obliges Member States to provide the data subject
with a right to object to the procession of data,
Oblivion – A Comparative Analysis
this does not embrace scenarios in which consent
is withdrawn in retrospect.34 Since the Directive
95/46/EC mainly sets the minimal standard for I. European Union
data protection in the EU, the national legislations
of Member States can differ in this respect. In other
words, the withdrawal of consent as a ground 1. Relevant Legal Provisions
for erasure can be established by national data
protection acts. 26 At the European level, privacy is an essential human
right and is protected in Art. 8 (1) of the European
24 If erasure on the grounds of Art. 17 (1) of the Convention of Human Rights (ECHR)40 and the
Regulation is demanded, the data controller has to more recent Art. 7 of the Charter of Fundamental
carry out the erasure without delay.35 An exception Rights of the European Union (CFREU). Both articles
is granted (inter alia) to the data controller in cases provide a right to respect of one’s private life,
where retention is necessary for exercising the right home and communication. Art. 8 ECHR regulates
of freedom of expression, reasons of public interests the relationship between individuals and public
or for compliance with a legal obligation to retain authorities and does not establish a direct obligation
the personal data by EU provisions or national law of for private parties.41 The recent ECJ ruling (cf. C.I.2.)
a Member State to which the controller is subject.36 gave some clarity with regards to the impact of
2 74 2014
those rights on oblivion, erasure and forgetting in 2. ECJ C-131/12, Google Spain v.
the digital age. Spanish Data Protection Agency
27 Those fundamental rights safeguarding privacy
31 On May 13, 2014, the ECJ brought some clarity
must be weighed against the fundamental rights to
regarding the practical impact of some of the
freedom of expression and information,42 as they are
aforementioned provisions. The Spanish Data
provided for inter alia in Art. 10 and Art. 11 ECHR.
Protection Authority (DPA) had ordered Google to
de-index parts of a newspaper’s archive concerning
28 Next to the protection of personal life in Art. 7
a data subject’s attachment proceedings back in the
CFREU, the CFREU also explicitly protects personal
1990s. During appeal proceedings, the High Court
data in Art. 8 (1). Already Art. 16 (1) Treaty on the
of Spain (“Audiencia Nacional”) demanded that the
Functioning of the European Union (TFEU) states that
ECJ determine whether Google can be deemed a
everybody has a right to protection of his personal
data controller regarding the contested archives,
data. With regard to the processing of personal data,
whether Art. 12 (b) and 14 Directive 95/46/EC oblige
the principles and conditions under which erasure
Google to de-index third-party-generated web pages
can be demanded are defined in the Directive 95/46/
and if these provisions provide for a “right to be
EC. Especially relevant in this regard are Art. 12 (b)
forgotten”.49
and Art. 14. The former article states that every data
subject has the right to obtain from the controller –
32 As to whether search engines are to remove certain
if appropriate – the erasure of processed data, which
results that were provided when typing the data
does not comply with the provisions established in
subject’s name according to Art. 12 and 14 Directive
the Directive, in particular if the data is incomplete
95/46/EC the question was affirmed. Interestingly,
or inaccurate.
the court emphasized that whenever a search is
performed by typing a person’s name, the engine
29 A data subject’s right to erasure will depend on (1)
establishes “a more or less detailed profile” of such
whether the processing of the personal data was
a person, and the interference of this occurrence is
legitimate, i.e. in accordance with the requirements
catalysed by the role search engines play in today’s
set forth in Art. 7 and 8; (2) whether the principles
society. In Recital 81 and 97, the ECJ then established
with respect to data quality of Art. 6 were adhered to;
the general rule that, due to the potential seriousness
and (3) the availability of other corrective measures
of such an offence, the data subject’s right to privacy
that would make the processing legitimate.43 If these
as provided for in Art. 7 and 8 CFREU overrides
requirements are fulfilled, the data subject can have
the interest of Internet users in having access to
its personal data erased. Erasure in this sense equals
information as well as the economic interest of the
every measure that results in making the personal
search engine. The impact of this obiter dictum will
data unavailable to the data controller.44 Information
have to be subject to further research.
can be erased by physically destroying the medium
that carries the personal data, by overwriting the
33 With regards to the merits of the case, the court
“to-be-erased” data with other information, or by
acknowledged the duty of Google to erase such links
removing the link between the information and the
when demanded to do so by a DPA. It argued that
person and therewith altering the character of the
even if the content on the corresponding web page,
data from personal to non-personal.45
to which the Google search results linked, was lawful,
Google could still be forced to de-index specific
30 Further, the provisions of Directive 2002/58/EC46
results relating to a subject’s name. In particular, the
and Directive 2000/31/EC47 apply as lex specialis with
court reasoned that the appearance of the contested
respect to the electronic processing of data. Art. 6
data did violate the data relevancy principle as well
of the Directive 2002/58/EC states that “data (…)
as the principle of limited retention (Art. 6 (1) c and
must be erased or made anonymous when it is no
e Directive 95/45/EC) and therefore was unlawful
longer needed for the purpose of the transmission
in the meaning of Art. 12 (b) Directive 95/46/EC.
of a communication”.48 The Directive 2000/31/
Furthermore, since Google only could justify further
EC seeks to implement a differentiated system of
processing by invoking Art. 7 (f) Directive 95/46/EC
intermediate service provider’s liability for illicit
– overriding the interest of the controler since the
content in its Arts. 12-15. While not accounting for
data subject never consented to Google processing
erasure or oblivion rights, as will be shown, the latter
his personal data – the court reminded Google that a
provisions do play an important role with regard to
data subject has a right to object to such processing
online privacy protection.
of personal data pursuant to Art. 14 Directive 95/46/
EC.
2 75 2014
II. France justified by any historical interest when the person

concerned was still alive.59
1. Oblivion and the Various 37 Nevertheless, it seemed to have become the accepted
opinio juris amongst French Regional and High Courts
Provisions Protecting Privacy that “a public event, after the passing of a sufficiently
long time, can become, for the person who was
34 The French constitution does not provide for a its protagonist, a fact of private life again, which
fundamental right to privacy or personality but may remain secret or forgotten”.60 However, and
rather makes a reference to the Declaration of somewhat surprisingly, when a woman requested
Human and Civic Rights of August 1789 (1789 the suppression of publications on her activities
Declaration) in its preamble. Nevertheless, Art. 9 during the occupation of 1940-45, the Supreme
of the French Civil Code (CC), which guarantees Court’s first civil chamber (“Cour de Cassation”)
everybody a general right to privacy, can be seen as dismissed the notion that a right of oblivion may be
the codification of the protective standards courts invoked when the information had been lawfully
have drawn in the past from Art. 12 of the 1789 disclosed in the local press and therefore no longer
Declaration.50 Even if some legal scholars deem Art. belonged to the private sphere.61
29 of the Act on the Freedom of the Press51 as the
establishment of the right to privacy, the latter is
merely a libel action that prohibits defamation.52 2. Defamatory Autocomplete Suggestions
Additionally, the scope of Art. 1382 et seq. CC (the
basic provision of French tort law) has traditionally 38 The judicial reasoning in France shows the
been very broad, which has led to quite an effective delicate balance between the personality rights
protection of personality rights in France.53 The right of an individual, the freedom of the press and the
of oblivion – having personal data deleted when it freedom of information depending on the specifics
is no longer newsworthy – is seen as a particular of the case. Today, in particular search engines – or
right of personality.54 However, up to today the right Google as the dominant search engine in Europe –
is not explicitly provided by statute but rather is also face accusations of infringement of personality
derived from “judicial reasoning” when applying the rights. In 2010, the Regional Court of Paris had to
aforementioned provisions.55 decide whether the plaintiff could, based on Art. 29
Freedom of the Press Act, demand erasure of the
35 The effectiveness of the French legislation is also autocomplete suggestions “rapist”, “sentenced”,
reflected in the country’s extensive case law. In and “satanist” when inserting his name in the
different instances the French jurisdiction has search box.62 The court qualified the autocomplete
elaborated on the conditions under which an suggestions as allegations or imputations that
individual can claim his right of oblivion. The undermine the honour or reputation of the plaintiff.
High Court of Paris (“Cour d’appel”) initiated the The court argued that since the algorithms are based
discussion, in 1967 in the case Delle Segret v. Soc Rome on human thought, Google must prove why the
Film.56 In its decision, Mme. S’s demand for damages search results they provide should not be viewed
against a movie company that had produced a docu- as a statement from the company. Since Google
fiction movie on the serial killer Henri Landru, to failed to do so, they were ordered to delete these
whom she had been a mistress, was rejected, based autocomplete suggestions.
on the argument that she had previously made the
story public in her published memories. 39 Another decision of the High Court of Paris dealt
with autocomplete suggestions and preliminary
36 In 1981 the High Court of Paris ruled that the measures. The court found that the search
disclosure of personal information relating to an suggestion “fraud” next to a company’s name was
individual who had been involved in a tragedy fifteen capable of libelling, especially because the average
years back could not be justified because there was Internet user follows the suggestions. It concluded
no necessity to disclose such information. The court that the suggestion could be interpreted as Google’s
thereby acknowledged a right to oblivion.57 In 1983 in opinion, in particular because it was presented as
the well-known Papon decision,58 the Regional Court helpful input and it was not obvious that it was
of Paris (“Tribunal de grande instance”) defined the generated automatically. Therefore, requiring
boundaries of the right of oblivion that had been Google to take all necessary measures to eliminate
acknowledged two years earlier. In Papon the court those privacy-infringing results did not violate
stated that it is neither the duty nor the competence the company’s freedom of expression.63 In a later
of French judges to decide how a special episode of decision, the same court concluded again that it is
history should be remembered or characterized in appropriate to require Google to delete suggestions
history. The court argued that a historian could only that were “obvious infringements of privacy”. The
be liable if he was disclosing inaccurate or twisted respondents’ objection that the suggestion was
facts, or when the disclosure of the facts was not delivered by an algorithm was dismissed because the
2 76 2014
court ascertained that Google is able to filter racist or erasure.74 Google also complied with the erasure
pornographic suggestions and therefore it should be notice and deleted several photographs from its
feasible to do the same for defamatory suggestions.64 image service. Nonetheless, the pictures reappeared,
which led Mr. Mosley to demand that Google de-
index the defamatory photographs from its search
3. Data Protection Law and Erasure results. Based on Art. 6 LCEN, Mr. Mosley demanded
that Google be ordered to remove and prohibit the
40 France was among the first countries that enacted a future publication of those explicit photographs.
law on data protection.65 The “Loi n°78/17 du 6 janvier When applying Art. 6 LCEN, such measures must
1978, relative à l’informatique, aux fichiers et aux libertés” be proportionate and limited in time. The illegality
(Act 78/17), which had considerable influence on the of the pictures confirmed by two European courts,
drafting of the Directive 95/46/EC,66 was amended and the fact that Google filters images automatically
in 2004 according to EU standards.67 The two most when uploading them to its services, led the court
relevant provisions with respect to erasure are Arts. to affirm the proportionate nature of the request.75
38 and 40. While the former establishes a right to
object to the personal data processing for legitimate
reasons, the latter guarantees every individual, for III. Germany
any incomplete data, expired data or data for which
processing is unlawful, a right to have it rectified,
completed or deleted. Art. 40 Act 78/17 is seen as 1. Oblivion in the System of Constitutional,
a procedural right which entitles the individual to Civil and Criminal Privacy Protection
have its data deleted whenever its right to privacy
is infringed. It is interesting to note that most of the
42 In Germany the Constitutional Court
reviewed case law regarding the erasure of personal
(“Bundesverfassungsgericht”) has interpreted the
data has not been based on Art. 40 Act 78/17.68
“right to personality” in Art. 2 (1) of the German
Nevertheless, in the 2011 Mme. C. v. Google decision,
Basic Law (GG) of 1949, which guarantees to everyone
the Regional Court of Montpellier elaborated that
a “right to free development of his personality”. The
Google had an obligation under Art. 38 Act 78/17 to
introduction of Art. 1 (1) and Art. 2 (1) GG was crucial
allow subsequent withdrawal of personal data by de-
for the evolvement of personality protection.76 In
indexing webpages.69 With respect to de-indexation,
the light of the latter two provisions, German courts
the recent ruling by the Regional Court of Paris70
interpreted § 823 (1) of the German Civil Code (BGB)
elaborates on the hosting provider’s liability with
– whose scope is not as wide as Art. 1382 CC in
respect to erasure. The decision was based on
France77 – in a way that protects the individual’s
Art. 6 Law for Confidence in the Digital Economy
right of integrity of his physical body and belongings
(LCEN),71 which establishes the notice and take
as well as his right to privacy.78 However, many
down obligation on hosting providers, as laid out
specific statutory provisions in private and criminal
in the Directive 2000/31/EC (cf. C.I.1).72 Under this
law further protect personal information –some of
provision, the hosting provider will be held liable
which were enacted long before the GG.79
whenever the demanding party demonstrates the
hosting provider’s actual knowledge of the contested 43 The German case law dealing with the right to
content and his wrongdoing. Such a wrongdoing is personality – and in particular the right of oblivion
seen in the continued distribution of the unlawful – is extensive.80 Important leading cases81 in this
content or in not having reacted to the request respect are the Lebach I and Lebach II decisions. In
immediately.73 Therefore, the Court of Paris held the German Constitutional Court’s Lebach I decision,
that Google had participated in the realization of the the airing of the ZDF produced docu-drama on a
moral damage the plaintiff had suffered from having criminal gang who had killed five soldiers in 1969 was
her name linked to pornographic webpages. Even prohibited because it showed C’s name and picture
though it is based on different legal norms, the case (C had been an actual member of the gang and at
has similarities to the previously mentioned Mme. C. the time was still in prison). It was reasoned that
v. Google decision of the regional Court of Montpellier the airing would have affected his privacy as well as
in 2011. In both cases, former porn actresses were public interest, in regard to putting his rehabilitation
demanding the de-indexation of webpages relating in danger.82 While the Lebach I verdict was rendered
to their past activities. in 1973, the Lebach II case dates to 1999. Another
TV station wanted to air a TV documentation on
41 The Regional Court of Paris dealt with explicit
the gang’s deeds. This time, however, the gang
content once again when it ordered Google to block
members were neither named nor were pictures of
images depicting Max Mosley during a privately held
them shown during the documentary. The German
Nazi-themed sex act. The British High Court of Justice
Constitutional Court therefore argued that the right
as well as the Regional Court of Paris had recognized
to personality does not entitle criminals with a claim
the unlawfulness of distributing such pictures and
of not being confronted with their deeds in public
subsequently approved Mr. Mosley’s demand for
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ever again. Such an interpretation of the Lebach I found this case comparable to the Lebach I case,
decision was deemed to be misleading.83 the Supreme Court (“Bundesgerichtshof”) came to
a different interpretation of § 823 BGB, Art. 1 (1),
44 The Hooligan decision of the High Court of Berlin Art. 2 (1) GG and Art. 8 ECHR when it weighed them
(“Kammergericht”) in 200184 was an interesting one against statutes protecting the freedom of speech
with respect to the digital storage of information. and information (Art. 5 GG and Art. 10 ECHR).
The decision concerned a news article reporting on Even though data protection law was invoked, it
the tragic incident at the FIFA World Cup 1998 when was considered not applicable due to reservations
a hooligan almost killed a policeman by kicking him resulting from international public law. The
in the head. The article reported the story (including Supreme Court stated that when current events
a picture of the hooligan), rendered a psychological are reported, the public interest in the information
analysis of the hooligan’s character and stated that generally outweighs other individual interests, but
he was an international drug lord (which turned that such reports could become unjustified during
out to be wrong). The hooligan demanded deletion time. The court subsequently weighed different
of the article from the newspaper’s online archive factors against each other, such as the time elapsed
by invoking the tort of privacy infringements in between the event and the report, the correctness
connection with the libel action and his right to of the report and its impact. Since the contested
personality. The court acknowledged that after a report was found to be based on true facts and not
certain amount of time, the criminal’s interest in stigmatizing as well as – unlike Lebach I – not of
anonymity could outweigh the public interest in broad public impact, the Supreme Court decided
the information. Yet the court got around balancing in favour of the plaintiff. Further it was reasoned
the right to privacy with the right to information by that an imperative of deleting identifying reports on
clarifying that an online archive is a “pull service”, criminal conduct would eventually lead to deleting
which is not to be confused with a publication. The history and the media would not be able to fulfil
archive therefore enjoys a right to store any article its purpose of informing the public – as they are
based on the freedom of speech (Art. 5 (1) GG).85 ordered by the GG.88 Note that the court had similar
reservations with regard to “erasing” history as they
45 In 2006 the High Court of Frankfurt could be seen in the Regional Court of Paris’ Papon
(“Oberlandesgericht”) also dealt with issues decision (cf. C.II.1). It also must be mentioned that
resulting from online newspaper archives and there were several Sedlmayr decisions, and all media
balanced the right of oblivion in light of the benefits companies defeated the claimant.89
of rehabilitation. The court acknowledged a general
right of oblivion, but denied it in the particular case 47 In sum, German jurisdiction has been reluctant
due to the plaintiff’s lifetime imprisonment and thus to grant the right of oblivion on grounds of
a lack of interest in rehabilitation. The court stated infringement of the individual’s right to personality.
that freedom of speech requires an unrestricted German courts have balanced (in different instances)
access to information and doubted whether an the interest in having “historical news” deleted
archive should be ordered to “change history”.86 One versus the freedom of the press. Especially in light
year later, the High Court of Hamburg did not seem of the potential endangerment of the rehabilitation
to have such reservations. In its decision, it argued into society, an interest in oblivion has been
that based on § 823 (1) BGB in connection with Art. acknowledged. As illustrated by the cases presented,
1 (1) and Art. 2 (1) GG, the interest in rehabilitation the right of oblivion is only granted when the
did outweigh the interest of the archive in being benefits of rehabilitation outweigh the censorship
complete. It therefore had to delete the plaintiff’s of the press.
name from its publications. Furthermore, concerning
the potential harm articles on convicted persons 48 Furthermore, one should mention the Kannibale von
can have on their rehabilitation, the court found Rothenburg ruling by the German Supreme Court in
that monitoring its archives in order to prevent 2009, in which a known cannibal was unsuccessful
infringements of the right of oblivion seems to be a in trying to stop the airing of a horror movie that
reasonable obligation for an online archive.87 was an adaption of his disturbing deeds. His case
was dismissed because he himself had exposed
46 The so-called Sedlmayr case has gained much details of his crime and his identity to the public
attention. Two brothers had killed the famous and therefore failed to prove that his rehabilitation
actor Walter Seldmayr in 1990. Though they had was endangered by the movie.90 Similar to the above-
been sentenced to lifetime imprisonment in 1993, mentioned 1967 Paris Appellate Court’s Delle Segret
one brother was released on probation in 2008. v. Soc. Rome Paris Film decision,91 the conclusion may
He filed several claims against media webpages, be drawn that a right of oblivion can also be waived
inter alia one against a German radio. The latter if the subject itself reminds the public of its deeds.
had stored an online report dating from 2000 in its
web archive, in which the 10-year anniversary of
the killing was remembered. While the High Court
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2. Data Protection Law and Erasure overruling interests of the data subject. In order to
assess this question, the court weighed the “right
49 The fundamental legal ground for privacy protection to informational self-determination as provided for
when personal data is being processed lies in the in Art. 1 (1) and Art. 2 (1) GG” against the freedom
German Federal Data Protection Act (BDSG). This law of speech and information as provided for in Art. 5
incorporates the principles of data processing laid (1) GG. The court qualified the data in question as
out in the Directive 95/46/EC.92 belonging to the professional social sphere, meaning
that they were neither private nor even intimate. On
50 § 35 BDSG lays out the foundation of the right of the other hand, it found the platform to be designed
erasure of personal data when this data is being in a manner that prevented libelling statements
processed by non-state entities. In particular, § (e.g. besides the possibility to rate a teacher with
35, (2) BDSG distinguishes four general situations pre-fixed attributes, there was no possibility to
in which personal data may be erased; these arise leave comments) and acknowledged pupils and
whenever (1) the data is unlawfully recorded, (2) the their parents’ legitimate interests in comparing
data is sensitive, (3) the purpose of the collection teachers. The claim was therefore dismissed.95 Yet
of the data is fulfilled or (4) further retention is the Supreme Court’s judgment highlights that there
unnecessary. Moreover, personal data may not be is no general rule regarding the admissibility of
collected, processed or used if the data subject lodges online rating platforms; rather, each case must be
an objection with the controller and an examination assessed individually.
indicates that legitimate interests of the data subject
due to its particular situation outweigh the interest
of the data controller in such collection, processing 3. Defamatory Autocomplete Suggestions
or use.93
53 It is further interesting to note that in Germany,
51 One case that dealt with § 35 BDSG was decided at the “well-known” claims against the autocomplete
the dawn of the new millennium by the High Court function of Google were not based on data protection
of Hamm. The defendant, a business information law. In 2011, the High Court of Hamburg had to
agency, had stored information on the plaintiff’s decide, on the grounds of defamation and general
number of employees, business routine, mode tort law,96 whether the claim of a real estate company
of payment, assets and liabilities. Most data was was legitimate or not. The claimant demanded that
compiled from public sources, except the assets and Google delete the autocomplete suggestion “fraud”.
liabilities which had been estimated. The plaintiff In addition, he demanded that various pages and
filed a lawsuit against the business information snippets, in which the real estate company was
agency in which it demanded erasure. The court accused of betraying its customers, be de-indexed
acknowledged that § 35 BDSG guarantees a right from the search results. According to the claimant,
to erasure, except when consent was given to the the snippets were an expression of Google’s opinion
processing (and that this was not the case was and therefore were capable of being a violation of
uncontested) or the law allows the processing. § personal rights. Yet the High Court of Hamburg found
29 BDSG allows commercial collection from public that an algorithm – without human intervention –
sources as long as there are no legitimate overruling had produced the search results and that these were
interests of the data subject. Because the information not the opinion of Google as the search engine would
was not sensitive and there was, to a certain degree, only provide results that are already available on the
a public interest in such data, its collection was legal. Internet. Additionally, the court held that Google
Accordingly, the request for erasure was rejected. had no duty to examine and filter the source of
Nevertheless, the agency had to rectify that the data search results beforehand, and that its participation
on assets and liabilities were only estimated.94 in the alleged violation of privacy rights was neither
voluntary nor of appropriate causality. The High
52 With regards to the admissibility of online rating Court of Hamburg thereby rejected the claim for
platforms the Supreme Court’s 2009 spickmich. forbearance.97
de ruling was expected to be a landmark decision.
The issue concerned a rating platform which 54 Similar reasoning led to denying a right to erasure
allowed pupils to anonymously rate their teachers by the High Court of Munich. The claimant, an
with regards to several criteria by using pre-fixed address register provider, demanded the deletion
attributes such as “competent” and “well prepared”. of Google’s search results which accused him of
These ratings were combined to an overall grade. fraud. Furthermore, he demanded the deletion of the
One teacher (she had received a 4.3, which is search suggestions “fraud” and “rip-off” associated
equivalent to a barely acceptable performance) sued with his name. The court argued that Google
the platform for forbearance. The court found that provides results – in the form of snippets and search
the respondent’s processing of data could be justified suggestions – which are automatically generated.
by Art. 29 BDSG (collection from public sources for Thereby, Google does not make a statement of its
commercial reasons) as far as there are no legitimate own but rather re-organizes pre-existing content. As
2 79 2014
this was considered an obvious fact to the average IV. Italy

user, Google could not be considered an offender,
accomplice or assistant to any privacy-infringing
action. Furthermore, the court reasoned that a 1. Privacy and Data Protection Provisions
notice and take down obligation would require a
so-called “duty to secure fair competition”. Such
56 According to Art. 2 of the Italian Constitution,
an obligation would only arise when being notified
“the Republic recognizes and guarantees the
of an obvious privacy infringement. Privacy
inviolable rights of a person, as individual and in
infringements, however, were deemed to be far from
the community where he expresses its personality
obvious because they involve a complex balancing
(…)”. In combination with Art. 15, which protects
of interests and therefore a notice and take down
the secrecy of correspondence, those constitutional
obligation was denied.98
norms lay out the foundation for protecting an
individual’s privacy.102 Yet in civil law there is no
55 These decisions showed that German courts highly
statutory provision protecting a general right to
valued the right to information and therefore
personality or privacy; rather, only certain aspects
were reluctant to impose any liability on a search
of personality (such as name and physical integrity)
engine for its results or autocomplete suggestions.99
enjoy protection.103
Surprisingly, the German Supreme Court overthrew
this approach in its Scientology decision in 2013. In
57 On a base level, the protection of personal data is seen
this case, the plaintiffs, an online drugstore and
as a subjective right that strengthens the individual’s
its founder and chairman R.S., sued Google for the
right to defence against actions that adversely affect
search suggestions “Scientology” and “fraud” and
his right of privacy.104 The Italian Data Protection
demanded forbearance. By invoking the above-
Act105 (Legislative Decree 2003/196) incorporates in
mentioned arguments, the High Court of Cologne
Art. 7 (3) the right of the data subject to demand
dismissed the claim.100 However, the Supreme
erasure or anonymization of personal data if the
Court reasoned that “Scientology” and “fraud” are
processing is illegitimate or if the maintenance of
both words with negative associations and since
the data is no longer necessary in relation to the
the average user expects that these suggestions
purpose for which they were specifically collected.
are helpful inputs, they are capable of invading
Furthermore, the data subject has the right to
privacy rights. In the present case, such a privacy
update, rectify or complete the data with additional
infringement was acknowledged, in particular
data.106 These tools allow the rectification of the
because the suggestions created untrue associations.
data after its collection and mutation.107 Art. 11 (1e)
The court concluded that even if generated by an
states that identifiable personal data shall not be
algorithm, the search engine is accountable for its
processed over a certain amount of time necessary
suggestions. In particular, the notion that search
for the purposes for which they have been collected.
engines could be considered as mere hosting
According to Italian scholars, once the purposes are
providers was dismissed. However, in the court’s
attained or no longer of interest, the data subject
view, search engines should not be obliged to check
has the right “ad essere dimenticato”,108 i.e. the “right
all suggestions in advance, but should take measures
to be forgotten”. Thereby, Italian law prohibits the
to prevent their suggestions from infringing privacy
maintenance of personal data as soon as it fulfils its
rights. The significance of this is that if someone
purpose of collection.109
notifies the search engine that the suggestions
are infringing upon his or her privacy rights, this
notification creates an obligation to check whether 2. The Right of Oblivion and
this is the case and eventually delete the contested
Online Archives
suggestion.101 Therefore, as in France, search engines
face accountability for autocomplete suggestions
generated by algorithms and qualify as content 58 It should first be mentioned that Italian literature
providers in this respect. Nevertheless – as opposed distinguishes between privacy and reservation,
to France, where obvious privacy infringements yet states that these two concepts are overlapping
must be taken down in advance – the German and intermingled. While privacy is understood as a
Supreme Court merely established a notice and take guaranteed freedom to determine for oneself how
down obligation for a content provider based on the to shape one’s private life, reservation protects
general privacy tort action. the integrity of the individual’s private sphere.110
Those rights were further developed by courts and
include, among others, the right of reputation, the
right to rectification, the right to be let alone and
the right of image and name.111 In their core, these
rights protect the personality and identity of the
individual.112 Since the personality of an individual
consists of different aspects varying over time, the
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right of oblivion balances the conflict between an intermediaries and hence not responsible for the
accurate story (at the time it occurred) and an actual information or obliged to de-link the contested
person’s identity at the time being. In this regard, the webpages.
right of oblivion guarantees a right to reservation.113
Therefore, Italian jurisprudence and legal scholars 61 Prior to this ruling, the Italian data protection
define the right of oblivion as the individual’s right authority issued two decisions in 2005 and 2008
to prevent the publishing of old news concerning concerning online archives. The first ruling dealt
him or her, even if the reported events had once with the online retrieval of a decision issued in
been newsworthy and legitimately published.114 1996 by the Italian Antitrust Authority against a
Special focus lies on the role of time and the balance company on account of misleading advertising.121
between public and individual interests.115 The data protection authority stated that such an
online retrieval on external search engines should be
59 In 1984 the Italian Court of Cassation (“Corte di restricted. Next to the establishment of a restricted-
Cassazione”) established three criteria determining access section to old decisions on the antitrust
the boundaries of the freedom of the press. The authority website, which must not be retrievable
dispute before the court involved different reports by standard search engines, the Italian DPA ordered
published in a monthly newspaper concerning the the Antitrust Authority to define the time period
common funds of two real estate companies. The during which the posting of free decisions seemed
plaintiffs claimed that these reports published in proportionate. Thus, access must be granted to
1972/1973 were denigrating and demanded, based decisions that are still relevant for fulfilling their
on Art. 2043 of the Italian Civil Code, the subsequent purpose; respectively, access to decisions that have
prohibition of the reports and damages for the loss already achieved their purpose should be restricted.
suffered. In its decision, the court debated the limits The Antitrust Authority complied by applying robot-
of the freedom of the press, a right guaranteed in meta tags122 to decisions that were more than five
Art. 21 of the Italian Constitution, and regulated in years old (sanctions against offenders were statute-
the Press Act.116 The court established three criteria barred after this time). In the second decision, DPA
limiting the freedom of the press: first, the reported v. Google Inc. and Rcs Quotidiani S.p.A of 2008, the
information needs to be of social or public interest; data protection authority balanced the individual
second, the coverage needs to be correct (or at right of oblivion with the freedom of expression,
least the result of a serious investigation towards the freedom to exercise free historical research,
finding the truth); and third, the information must the right to education and information as well as
be presented in an objective, civilized manner. The with the rules on protection of personal data. The
decision balanced arguments such as the social DPA held that there were legitimate grounds for
utility of the information, newsworthiness, need for publishing the contested publication – at that time
completeness of the information, intrusions in the an undisputed depiction of facts of public interest.
private sphere of the individual and the potential Nevertheless, the DPA argued that there were no
harm to his image, honour and reputation.117 legitimate grounds for personal data in online
archives being retrievable through external search
60 Later in 2012, the Court of Cassation dealt with the engines. In other words, an archive’s web page that
right of oblivion in online newspapers.118 A politician exhibits personal data must be de-linked from the
who had been arrested and charged with corruption external search engine function by the company that
in 1993 and subsequently acquitted, requested that acts as the content provider.123
a news article regarding his arrest be removed from
the archive of the “Corriere della Sera”, which was still
indexed by search engines. Even though the event 3. Defamatory Autocomplete Suggestions
of his arrest and charges were true, the Court of
Cassation acknowledged that the information in the 62 In 2011 the Regional Court of Milan (“Tribunale
article was incomplete, since the charge had been Ordinario di Milano”) dealt with a matter concerning
dropped. Balancing the freedom of the press and autocomplete suggestions by Google. The plaintiff
the individual’s right to privacy and oblivion, the demanded that the suggested search result “fraud”
court ruled that the newspaper had an obligation or “crook” next to his name be erased. The court
to equip its archives with “an appropriate system ruled in the plaintiff’s favour: a user seeing such
designed to provide information (in the body of a suggested search result would be suspicious and
the text or in the margin) on whether there exists assume illicit activities by the plaintiff; the user
a follow-up or any development to news items and would therewith be more likely to stop his further
if so what the content is [...] allowing users swift search enquiry. Therefore, the court stated that
and easy access to the updated information.”119 such an autocomplete suggestion infringes the
Therefore, it is necessary to amend information120 honour and reputation of the person it relates to.
on the development of the case so that the users are Simultaneously, the court specified that the search
presented with an accurate picture of the events. suggestions are based on a “neutral” algorithm that
However, search engines were viewed as mere does not differentiate between good and bad. The
2 81 2014
association between the applicant’s name and the Therefore, when it comes to discussing the potential
words “scam” and “crook” was considered the work benefits of introducing a right to be forgotten in data
of the software specially developed and adopted by protection law, legislators should be aware of existing
the claimant to optimize access to its database. While laws and case law with respect to privacy protection.
Google itself was considered a hosting provider The current debate has failed to thoroughly analyse
under Directive 2000/31/EC (and its implementation and benefit from existing judicial reasoning on the
into Italian law in Legislative Decree 70/2003), right of oblivion that provides for a differentiated
Google’s “autocomplete function” was deemed to balancing of interests. However, the recent ECJ
fulfil characteristic functions of a content provider, ruling could foster the importance of data protection
namely by choosing which information to provide to law, since the court based its ruling on the latter.
its users. The court found that Google was liable for
autocomplete defamatory suggestions that average Oblivion may be achieved by other means than erasure.
individual users are unable to distinguish from
truthful facts.124 National legal systems in Europe have taken different
approaches when it comes to balancing conflicting
63 Two years later, the same Regional Court of interests and – once a violation of privacy has been
Milan decided a case in which it excluded Google assessed – rely upon different measures to end such a
from liability for defamation with respect to the violation. In Germany, the national case law dealing
autocomplete suggestions.125 The court reasoned with the traditional concept of oblivion often focuses
that notwithstanding the qualification of Google on the question of whether or not rehabilitation of
as a caching, hosting or content provider, the the individual will be affected. The extensive case
company would still be responsible under Art. 15 law on this subject helps to define which criteria
and 16 Legislative Decree No. 70/2003 to remove affect the balance between the public’s interest of
defamatory content from its autocomplete function knowledge with the individual’s interest of privacy.
on an urgent basis. The court concluded, however, If the individual right outweighs other interests,
that even though Google had thus no general German courts will order the violator to erase the
obligation to monitor the information and in casu illicit content. Thereby, German courts need to
autocomplete keywords, it did have a duty to remove balance between erasing historical facts and the
illicit content if required to do so by a competent individual interest in having these facts forgotten.
judicial authority.126 Interestingly, the Italian jurisprudence highlights
that the rectification of personal data or restricting
its retrievability, in comparison to its total erasure,
D. Putting Oblivion, Erasure is less radical and interferes less with the freedom
of information or expression. In light of the recent
and Forgetting into Context: ECJ ruling, future research should also focus on
Insights Drawn from the measures such as rectification or restricting online
Comparative Case Law Analysis retrievability (e.g. ordering the application of robot-
meta tags or de-indexing).
64 Since 1995 the European Member States have
The easy access and quick retrieval of personal data
set a Union-wide standard for data protection.
via search engines is the main concern of individuals
Nevertheless, the different legal backgrounds have
regarding their online privacy.
led to a diverse implementation of data protection
principles into national legislation. Therefore, to The reviewed case law shows that increased
understand the ratio legis of the right of oblivion accessibility has catalysed online privacy concerns.
and the right to erasure and the evolution of the In particular, Google’s autocomplete software has
concept of forgetting on a Union and national level, been at the heart of various lawsuits. The question
it is essential to discuss the legal provisions and case of whether or not the autocomplete function
law dealing with these concepts. requalifies a search engine as a content provider has
been discussed in depth, in particular in Italy. While
65 The insights can be summarized in the following
the court decisions show that there have long been
main points:
insecurities on how to approach the ruling against
autocomplete suggestions, the establishment of a
The right of erasure as provided for by data protection law
notice and take down obligation is deemed to be
has rarely been the only legal ground in courts.
proportionate by German and Italian courts.
The right of erasure as established in data protection
The recent ECJ ruling also shows that the role
law has served only in few instances as the only
of information intermediaries should not be
legal ground of a court decision. Instead, other civil
underestimated. An individual may object to the
or criminal law provisions have been called upon
further processing of data by a search engine.
when an individual’s personality right is infringed.
However, the search engine has some discretion
2 82 2014
when it balances the conflicting interest and is only rights that may be invoked whenever the provisions
forced to de-index search results when ordered to do of the Directive 95/46/EC are violated, the ECJ saw
so by a competent authority. It should be examined no reasons to elaborate on the rights of freedom of
in further detail if this means that search engines are information and expression. This contradicts the
subject to a de facto notice and take down obligation examined national case law where these rights are
with respect to personal data.127 carefully balanced against privacy and personality
rights. This may be attributed to the fact that the
Sometimes the right to oblivion can be waived. focus of data protection law lies on the adherence
of processing principles rather than on balancing
Courts in Germany and France have acknowledged conflicting fundamental rights on a case-by-case
the possibility of waiving the right of personality: in basis. Nevertheless, Art. 12 (1) b Directive 95/46/EC
both the 1967 Paris Appellate Court Delle Segret v. Soc. gives some discretion with regards to the measures
Rome Paris Film decision as well as the Kannibale von that can end a privacy infringement. Regulators
Rothenburg Supreme Court ruling of 2009, a person’s should bear in mind that while erasure might be the
right of oblivion was disregarded because of prior easiest way to end a privacy infringement, it may,
public communication of the disputed facts. It is however, not be the most proportionate one in all
questionable whether or not EU regulators have cases.
given enough thought to the possibility to waive
one’s right of oblivion when drafting the concept of
the right to be forgotten. It seems more likely that E. Conclusion
the right to be forgotten would implement a right
to have information erased when the consent to its 67 EU policy makers are legitimately concerned with
publication is withdrawn. users’ online privacy. It is questionable whether or
not the right to be forgotten might address users’
In this regard, one may ask whether the data subject
fear of being haunted by their digital past. First of all,
in the latest ECJ ruling still has a legitimate interest
the terminology has led to controversial reactions
in having certain search results deleted by claiming
among scholars as well as industry leaders. Second,
they have become irrelevant. After all, the subject’s
the fact that the right was re-labelled as the right of
entire name as well as the related attachment
erasure reflects policy makers’ ambiguity towards
proceedings were not only mentioned in the ruling
the terminology used. In fact, we argue that the
but the subject was also recently inverviewed by
right to be forgotten is a generic term, bringing
newspapers.128
together the existing rights of oblivion and erasure.
Therefore, it is important to understand the rationale
While oblivion and erasure are complementary legal
and concepts of those rights as well as their practical
tools, the right of erasure has the potential to neglect the
implementation.
thorough balancing of conflicting interests.
68 Policy makers were awaiting the Google Spain v.
Finally, the legal tools of oblivion and erasure are
Spanish Data Protection Agency ECJ ruling in order
used in a complementary way. In other words,
to glean some insights on the right to be forgotten.
both concepts fulfil different purposes needed in
Correctly, the ECJ highlights that in the online
legislation: while the right of oblivion incorporates
context, the retrievability of data is a major issue
a substantial concept for balancing conflicting
– a finding supported by the fact that search
interests in order to determine when once-
engines are involved in many legal disputes before
newsworthy information should become irrelevant
courts in Germany, France and Italy. Nevertheless,
to the broader public, the right of erasure has a
we think that, while the Directive 95/46/EC was
more procedural character. The outlined national
interpreted in the light of the fundamental rights
legislations and court practices in France, Germany
to privacy, the fundamental rights of expression
and Italy show that on a national level, the right to
and information would have deserved more
erasure is understood and applied as one of many
consideration. Seemingly, it seems problematic to
corrective measures to end an infringement of
establish general rules on the weighing of interests.
privacy. The Italian case law especially highlights
Rather, such weighing must be done on a case-by-
this understanding: the discussed requests for
case basis. Therefore, an in-depth analysis of case
erasure were balanced with other rights, and often
law established in the EU member states could
the demand for erasure was replaced by a less radical
provide policy makers with a more nuanced picture
enforcement measure, e.g. rectification. In addition,
of the current implementation of oblivion and
the case law illustrates that erasure will be granted
erasure – a picture which yields that no right to
only after the thoughtful deliberation of substantial
erasure, oblivion or forgetting can be absolute, but
conflicting rights.
rather that they have to be carefully weighed against
66 By understanding the rights provided for in Art. 12 the freedom of speech and information. Since the
(1) b and Art. 14 (1) Directive 95/46/EC as procedural latter is justifiably a cornerstone of any democratic
2 83 2014
society, policy makers are well advised to pursue this 11 Communication from the Commission to the European
challenge candidly. Parliament, the Council, the Economic and Social Committee
and the Committee of the Regions, A comprehensive approach
on personal data protection in the European Union, Brussels,
4.11.2010, COM(2010) 609 final, p. 7.
12 The concept of informational self-determination was
* Aurelia Tamò is a PhD candidate at Chair of In- developed by the German Federal Constitutional Court
formation and Communication Law, University of (“Bundesverfassungsgericht”) in 1983. In its famous
Zurich. Damian George is a junior associate at Nobel Volkszählungsurteil the court declared some provisions of the
& Hug attorneys at law in Zurich. The authors would revised Census Act as unconstitutional. It articulated the
like to thank Prof. Dr. Urs Gasser, Executive Direc- right to informational self-determination as the “authority
of the individual to decide himself, on the basis of self-
tor at Berkman Center for Internet & Society, Har-
determination, when and within what limits information
vard University; Prof. Dr. Florent Thouvenin, Chair about his private life should be communicated to others.”
of Informationand Communication Law, University Cf. Antoinette Rouvroy/Yves Poullet, The Right to Informational
of Zurich; J.D. Cynthia Anderfuhren-Wayne, attor- Self-Determination and the Value of Self-Development:
ney at law at Nobel & Hug attorneys at law Zurich; Reassessing the Importance of Privacy for Democracy, in:
Zach Lerner, Legal Research Assistant with Youth Serge Gutwirth et al. (eds.), Reinventing Data Protection?,
Springer 2009., pp. 45 et seqq.
and Media Project at Berkman Center for Internet &
Society, Harvard University; and the JIPITEC Review 13 Cf. e.g. Napoleon Xanthoulis, Conceptualizing a Right to Oblivion
in the Digital World: A human rights-based approach, research
Committee, for their helpful inputs and discussions. essay at University College London, May 2012, pp. 16 et seq.,
The views expressed in this publication are the sole who argues that the right to be forgotten of the Draft Data
responsibility of the authors. Protection Regulation dated 25.1.2012, COM(2012) 11 final
constitutes – with the exception of the extension in Art. 17
1 Cf. e.g. Special Eurobarometer 359, Attitudes on Data (2) – a tautology of the right to erasure of the Directive 95/46/
Protection and Electronic Identity in the European Union, EC; Interchangeably using the term “right of oblivion” and
June 2011, p. 56 on the perceived risk of disclosing personal “right to be forgotten”: Ovidiu Vermesa/Peter Friess, Internet
information. of Things – Global Technological and Social Trends, 2011
2 Cf. Official Journal L 281, 23/11/1995 P. 0031 – 0050. River Publisher, p. 79; Cécile de Terwangne, Internet Privacy
and the Right to Be Forgotten/Right to Oblivion, Revista
3 Cf. EC sets out strategy to strengthen EU data protection
de Internet, Derecheo Y Politica (IDP), (13), February 2012,
rules, IP/10/1462, Brussels, 10.11.2010; EC Frequently asked
pp. 109 et seq., Norberto Nuno Gomes de Andrade, Oblivion: The
Questions on the Data Protection Reform, MEMO/10/542,
Right to Be Different… from Oneself – Reproposing the Right
Brussels, 10.11.2010.
to Be Forgotten, IDP, (13), February 2012, pp. 122 et seq.,
4 Viktor Mayer-Schönberger, Delete: The Virtue of Forgetting in Giusella Finocchiaro/Annarita Ricci, Quality of Information, the
the Digital Age, Princeton University Press 2009. Right to Oblivion and Digital Reputation, in: B. Custers et. al.
5 Alessandro Mantelero, U.S. Concern about the Right to Be (eds.), Discrimination and Privacy in the Information Society,
Forgotten and Free Speech: Much Ado about Nothing?, Berlin 2013, pp. 289-299; Cédric Burton/Christopher Kuner/Anna
Contratto e Impressa. Europa Vol. 17 (2012) No. 2, pp. 727-740; Pateraki, The Proposed EU Data Protection Regulation One
Meg Leta Ambrose/Jef Ausloos, The Right to Be Forgotten Across Year Later: The Albrecht Report, Bloomberg Privacy and
the Pond, Journal of Information Policy, Vol. 3, 2013, pp. 1-23; Security Law Report, January 21, 2013 state that the right to
Franz Werro, The Right to Inform vs. The Right to Be Forgotten: be forgotten is viewed by the Albrecht Report (cf. chapter
A Transatlantic Clash, in: Aurelia Colombi Ciacchi/Christine B.III.2) as an extension of the right to erasure.
Godt/Peter Rott/Leslie Jane Simth (eds.), Haftungsrecht im 14 Cf. e.g. Ambrose/Ausloos, supra note 5, pp. 1-23, who distinguish
Dritten Millenium, Baden-Baden 2009, pp. 285-300; Laura between full deletion of public data (oblivion) and the removal
Lagone, The Right to Be Forgotten: A Comparative Analysis, of data processed by third parties (erasure); Rolf H. Weber,
Working Paper Series, December 7th, 2012. The Right to Be Forgotten: More Than a Pandora’s Box?,
6 Cf. e.g. Adam Thierer, California Eraser Button Passes, The JIPITEC 2011 (2), pp. 120-130, who distinguishes between the
Technology Liberation Front, September 26, 2013; Eric active and passive verb tense; see also Antoinette Rouvroy,
Goldman, California’s New ‘Online Eraser’ Law Should Be Réinventer l’art d’oublier et de se faire oublier dans la
Erased, Forbes, September 24, 2014. société de l’information?, in: Stéphanie Lacour (Ed.), La
7 Herbert Burkert, Privacy – Data Protection: A German/European sécurité de l’individu numérisé. Réflexions prospectives et
Perspective, in: Engel Christoph/Keller Kenneth H. (eds.): internationales., Paris 2008, pp. 249-278.
Governance of Global Networks in the Light of Differing Local 15 Paul Bernal, A Right to Delete, European Journal of Law and
Values. Baden-Baden 2000, p. 46. Technology (EJLT) 2011 (2) No. 2, p. 2.
8 Cf. also Huw Beverley-Smith/Ansgar Ohly/Agnes Lucas-Schloetter, 16 Cf. chapter C.III.1.
Privacy, Property and Personality: Civil Law Perspectives on 17 Ambrose/Ausloos, supra note 5; p. 2; Mantelero, supra note 5,
Commercial Appropriation, Cambridge 2005, p. 207. p. 728.
9 Herbert Burkert, Changing Patterns – Supplementary 18 The terminology “respect for privacy” is understood in this
Approaches to Improving Data Protection. A European article as the overall idea of protecting an individual’s privacy
Perspective, Presentation at CIAJ 2005 Annual Conference on (private life, private sphere, private communication, etc.).
Technology, Privacy and Justice, Toronto September 29-30, Some jurisdictions – as will be discussed throughout this
2005, p. 4. article – have codified the “respect” into a right of privacy.
10 Cf. Fred Cate/Viktor Mayer-Schönberger, Notice and consent 19 Ambrose/Ausloos, supra note 5, p. 14.
in a world of Big Data, International Data Privacy Law 3 (2),
20 Ambrose/Ausloos, supra note 5, p. 14.
2013, pp. 67-73; Niko Härting/Jochen Schneider, Impulses for an
Effective and Modern Data Protection System, JIPITEC 2011 21 Ambrose/Ausloos, supra note 5, p. 15.
(3), p. 197.
2 84 2014
22 European Commission, Why do we need an EU data protection 41 Rolf H. Weber/Markus Sommerhalder, Das Recht der
reform?, Factsheet 2012. personenbezogenen Information, Zurich 2007, p. 97.
23 Press Release, Speech Viviane Reding, Justice for Growth makes 42 Cf. ECJ, Case 101/01, Lindqvist, [2003] para. 86.
headway at today’s Justice Council, SPEECH/13/29, 18.01.2013. 43 Dammann/Simitis, supra note 37, Art. 12 N 16; Eugen Ehmann/
24 Cf. e.g. Katy Steinmetz, Lucky Kids: California Gives Minors the Marcus Helfrich, EG-Datenschutzrichtlinie Kurzkommentar,
Right to Delete Things They Put Online, Time, September 23, Köln 1999, Art. 12 N 52 et seqq.
2013; Thierer, supra note 6. 44 Dammann/Simitis, supra note 37, Art. 12 N 16.
25 Bert-Jaap Koops, Forgetting Footprints, Shunning Shadows. A 45 Dammann/Simitis, supra note 37, Art. 12 N 16.
Critical Analysis of the “Right To Be Forgotten” in Big Data
46 Directive 2002/58/EC of the European Parliament and of
Practice, SCRIPTed, Vol. 8, No. 3, 2011, pp. 229-256, p. 232 et
the Council of 12 July 2002 concerning the processing of
seq.
personal data and the protection of privacy in the electronic
26 Koops, supra note 25, pp. 233 et seq. as well as pp. 250 et seqq. communications sector (Directive on privacy and electronic
27 Weber, supra note 14, pp. 120 et seq. communications), Official Journal L 201 , 31/07/2002 P. 0037
28 Rouvroy, supra note 14, pp. 249-278. – 0047.
29 Ambrose/Ausloos, supra note 5, p. 14. 47 Directive 2000/31/EC of the European Parliament and of the
Council of 8 June 2000 on certain legal aspects of information
30 Ambrose/Ausloos, supra note 5, p. 2.
society services, in particular electronic commerce, in the
31 Proposal for a Regulation of the European Parliament and of Internal Market (‘Directive on electronic commerce’), Official
the Council on the protection of individuals with regard to the Journal L 178 , 17/07/2000 P. 0001 – 0016.
processing of personal data and on the free movement of such
48 Cf. also Recital 22, 23, 26, 27, 28 of the Directive 2002/58/EC.
data (General Data Protection Regulation), Brussels, 25.1.2012,
COM(2012) 11 final; in combination with recital 6, 53 and 54. 49 Google Spain SL, Google Inc. v. Agencia Española de Protección
de Datos, Mario Costeja González, ECJ, C-131/12, Reference to
32 Council of the European Union, Proposal for a regulation of the
a preliminary ruling from the Audiencia Nacional 9.3.2012;
European Parliament and of the Council on the protection of
the term “right to be forgotten” is understood as a right
individuals with regard to the processing of personal data and
according to which “information should not be known to
on the free movement of such data (General Data Protection
internet users when he considers that it might be prejudicial
Regulation) – Key issues of Chapters I-IV, 2012/0011 (COD), n.
to him or he wishes it to be consigned to oblivion, even though
10227/13, Brussels, May 31, 2013, http://register.consilium.
the information in question has been lawfully published by
europa.eu/pdf/en/13/st10/st10227.en13.pdf. The version
third parties”.
of June 21, 2013 is available at: http://www.statewatch.org/
news/2013/jun/eu-council-dp-regulation-revised-11013-13. 50 Georgios Gounalakis, Privacy and the Media – A comparative
pdf. perspective, Munich 2000, p. 74.
33 European Parliament, Policy Department Economic and 51 Official French title: Loi du 29 juillet 1881 sur la liberté de la
Scientific Policy, Reforming the Data Protection Package, presse.
Study 2012, p. 60. 52 Beverley-Smith/Ohly/ Lucas-Schloetter, supra note 8, p. 149.
34 The right to object as provided for in Art. 14 Directive 95/46 is 53 Beverley-Smith/Ohly/ Lucas-Schloetter, supra note 8, p. 150;
limited to scenarios in which the procession was lawful only Mara Chromik, Die Entscheidungskriterien des Zivilrechts bei
due to outweighing interests of the public or the controller der Abwägung von Privatsphärenschutz und öffentlichem
(Art. 7 (e) and (f) Directive 95/46/EC); cf. Damian George/Aurelia Informationsinteresse: Eine rechtsvergleichende
Tamò, Ein Europäisches Recht auf Vergessen – eine Schweizer Untersuchung zum deutschen, französischen und spanischen
Pflicht zum Löschen?, in: Sandra Brändli/Roman Schister/ Recht, Munich 2011, pp. 3-4.
Aurelia Tamò (eds.), Multinationale Unternehmen und 54 Roseline Letteron, Droit à l’oubli, Revue de droit public de la
Institutionen im Wandel – Herausforderungen für Wirtschaft, science politique en France et à l’étranger, 1996 n° 2, p. 385-
Recht und Gesellschaft, Bern 2013, p. 49. 424, p. 415, 419.
35 Cf. 17, (3) Regulation. 55 Letteron, supra note 54, p. 423.
36 Cf. 17, (3), (a) (b) and (d) Regulation. 56 Cour d’Appel de Paris, 15.3.1967, Delle Segret, c. Soc. Rome
37 This provision is of special interest because Art. 14 of the Paris Film, JCP 1967, 15107; cf. Françcois Rigaux, La protection
Directive 95/46/EC – which already obliges Member States de la vie privée et des autres biens de la personnalité,
to introduce a right to object to the processing of personal Bruxelles/Paris 1990, p. 462 N. 403.
data– goes less far: The scope of Art. 14 in combination with 57 Court d’Appel de Paris, 13.10.1981, D. 1983, jur., 421.
Art. 7 (e) and (f) were not applicable in cases in which the data
58 Tribunal de grande instance de Paris, 6.5.1983, D. 1984, jur.,
subject wanted to withdraw his previously given consent.
14, Papon.
Ulrich Dammann/Spiros Simitis, EG-Datenschutzrichtlinie
Kommentar, Baden-Baden 1997, Art. 14 N 2. 59 Beverley-Smith/Ohly/ Lucas-Schloetter, supra note 8, p. 174.
38 The compromise amendments are available at http://www. 60 Beverley-Smith/Ohly/ Lucas-Schloetter, supra note 8, p. 178, with
europarl.europa.eu/meetdocs/2009_2014/documents/ reference to case law in Fn. 130.
libe/dv/comp_am_art_01-29/comp_am_art_01-29en.pdf 61 Cass.civ. 1°, 20.11.1990, Mme. Monanges c. Kern, JCP II, 21908;
(Compromise amendments 1-29) and http://www.europarl. decision available in French at: http://www.legifrance.gouv.
europa.eu/meetdocs/2009_2014/documents/libe/dv/comp_ fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURIT
am_art_30-91/comp_am_art_30-91en.pdf (Compromise EXT000007025328&fastReqId=1356475608&fastPos=1; For an
amendments 30-91). in-depth analysis, cf: Letteron, supra note 54, pp. 385 et seqq.;
39 Compare Regulation, supra note 31, with the draft version of Beverley-Smith/Ohly/ Lucas-Schloetter, supra note 8, p. 179.
June 21, 2013, supra note 32. 62 Tribunal de grande instance de Paris, 8.9.2010, M.X.
40 Despite the European Union not being a member of the ECHR, vs. Google and Eric Schmidt, decision available
it accedes its provisions according to Art. 6 par. 2 Treaty on in French at: http://www.legalis.net/spip.
the European Union. php?page=jurisprudence-decision&id_article=2985.
2 85 2014
63 Court d’appel de Paris, 9.12.2009, Direct Energie vs. Google, 82 Cf. Bundesverfassungsgericht, 35, 202, 5.6.1973, Lebach I,
decision available in French at: http://www.legalis.net/spip. decision available in German at: http://www.servat.unibe.
php?page=breves-article&id_article=2804. ch/dfr/bv035202.html.
64 Court d’appel Paris 14.12.2011, Lyonnaise de 83 Bundesverfassungsgericht, 1 BvR 348/98, 25.11.1999, Lebach II,
Garantie vs. Google and Eric Schmidt, decision in decision in German available at: https://openjur.de/u/182101.
French available at: http://www.legalis.net/spip. html.
php?page=jurisprudence-decision&id_article=3303. 84 Kammergericht Berlin, 9 W 132/01, 19.10.2001, AfP 2001, 561,
65 Weber, supra note 14, p. 123. Hooligan, decision in German available at: http://www.jurpc.
66 Christiane Féral-Schuhl, Cyberdroit – Le droit à l’épreuve de de/jurpc/show?id=20030022.
l’Internet, 6th Edition., Paris 2010, p. 35. 85 Kammergericht Berlin, 9 W 132/01, 19.10.2001, AfP 2001, 561,
67 Cf. Loi n°2004-801 du 6 août 2004 relative à la protection des Hooligan, decision in German available at: http://www.jurpc.
personnes physiques à l’égard des traîtments de données à de/jurpc/show?id=20030022.
carctère personnel physiques et modifiant la loi n°78/17 du 86 Oberlandesgericht Frankfurt am Main, 16 W 54/06, 20.9.2006,
6 janvier 1978. decision in German available at: http://openjur.de/u/194303.
68 Cf. e.g. case Court d’appel de Paris, 9.12.2009, Direct Energie v. html
Google, based on Arts. 1382-1384 French Civil Code. 87 Oberlandesgericht Hamburg, 28.03.2007, Az. 7 W 9/07,
69 Tribunal de grande instance de Montpellier, 28.10.2010, Mme. http://www.telemedicus.info/urteile/Allgemeines-
C. v. Google, decision in French available at: http://www.legalis. Persoenlichkeitsrecht/Personen-der-Zeitgeschichte/
net/spip.php?page=jurisprudence-decision&id_article=3121. Straftaeter/448-OLG-Hamburg-Az-7-W-907-Identifizierende-
Berichterstattung-in-Online-Zeitungsarchiven.html.
70 Tribunal de grande instance de Paris 15.2.2012, Diana Z. v.
Google, decision in French available at: http://www.legalis. 88 Bundesgerichtshof, VI ZR 227/08, 15.12.2009, Sedlmayr, (www.
net/spip.php?page=jurisprudence-decision&id_article=3357. dradio.de), decision in German available at: https://openjur.
de/u/70781.html.
71 Loi n° 2004-575 du 21 juin 2004 pour la confiance dans
l’économie numérique; Art. 6 is the implementation of Art. 14 89 Bundesgerichtshof, VI ZR 245/08, 20.4.2010 (www.morgenweb.
of the Directive 2000/31/EC into French law; Federica Casarosa, de); Bundesgerichtshof, VI ZR 346/09, 22.2.2011 (www.faz.
Wikipedia: Exemption from Liability in Case of Immediate net); Bundesgerichtshof, VI ZR 243/08, 9.2.2010 (www.spiegel.
Removal of Unlawful Materials, SCRIPTed Vol. 6, Issue 3, 2009, de); Bundesgerichtshof, VI 217/08, 8.5.2012 (www.rainbow.at).
pp. 670-676, pp. 671 et seqq. 90 Bundesgerichtshof, VI ZR 191/08, 26.5.2009, Kannibale von
72 Casarosa, supra note 71, pp. 671 et seqq. Rothenburg, decision in German available at: http://openjur.
de/u/72210.html.
73 Féral-Schuhl, supra note 66, p. 801.
91 Court d’Appel de Paris, 15.3.1967, Delle Segret, c. Soc. Rome
74 High Court of Justice, Mosley v. News Group Newspapers
Paris Film, JCP 1967, 15107.
[2008] EWHC 1777 (QB), available at: http://news.bbc.
co.uk/2/shared/bsp/hi/pdfs/24_07_08mosleyvnewsgroup. 92 Negotiated from 1970 until 1977, the BDSG was later revised
pdf; Ordonnance de Tribunale de grande instance de Paris, in 1990 and again in 2001, incorporating the Union provisions
29.4.2008, unpublished. of the Directive 95/46/EC; cf. Spiros Simitis, Einleitung:
Geschichte – Ziele – Prinzipien, in: Spiros Simitis (ed.),
75 Tribunal de grande instance de Paris, 6.11.2013, RG
Bundesdatenschutzgesetz – Kommentar, 7th Edition, Baden-
11/07970, Max M. v. Google Inc. and Google France, decision
Baden 2011, pp. 77 et seqq.
in French available at: http://www.legalis.net/spip.
php?page=jurisprudence-decision&id_article=3909. 93 Cf. § 35 (5) BDSG.
76 Beverley-Smith/Ohly/Lucas-Schloetter, supra note 8, pp. 100 et 94 Oberlandesgericht Hamm, Az.: 6 U 238/99, 19.6.2000, NVwZ 2001,
seqq; The existence of this general personality right was 235-236, decision in German available at: http://www.bfdi.
contested for a very long time. It was claimed that only bund.de/DE/GesetzeUndRechtsprechung/Rechtsprechung/
certain aspects of the right to personality such as the right WirtschaftUndFinanzenVerkehr/Artikel/190600_
to one’s name or image could enjoy legal protection; cf. Ansgar AuskunfteienGeschaetzteDatenKenntlichMachen.
Staudinger, in: Hk-BGB, 7th Edition, § 823 N 90, Baden-Baden html?nn=408918.
2012. 95 Bundesgerichtshof, VI ZR 196/08, 23.6.2009, decision in
77 Chromik, supra note 53, p. 4 et seq. German available at: https://openjur.de/u/31109.html.
78 Emanuel H. Burkhardt, Chapter 5, in: Wenzel et al. (eds.), Das 96 Based on §§ 823 par. 1, 1004 par. 1 S. 2 BGB analogous in
Recht der Wort- und Bildberichterstattung, 5th Edition, Köln connection with Art. 1, 2 par. 1 GG, resp. §§ 1004 par. 1, 823
2003, pp. 135 et seqq. par. 2 BGB in connection with § 186 StGB.
79 Cf. e.g. § 12 German Civil Code, which protects a right to 97 Oberlandesgericht Hamburg, 3 U 67/11, 26.5.2011, decision in
one’s name; §§ 22, 23 of the (Artistic Copyright Act), which German available at: http://openjur.de/u/167816.html.
guarantee a right to one’s image are such specific provisions; 98 Oberlandesgericht München, 29 U 1747/11, 29.9.2011, decision
§§ 185, 186 of the Criminal Code which is called upon when in German available at: http://openjur.de/u/442290.html.
defamatory actions have occurred. 99 Cf. Niko Härting, Bettina Wulff klagt gegen Google - Aus
80 This article does not account for an exhaustive discussion of der Einbahnstrasse in die Sackgasse, Legal Tribune
all the case law but restricts its focus on selected court rulings. Online, 10.9.2012, available at: http://www.lto.de/recht/
81 Cf. e.g. Bundesverfassungsgericht, 30, 173, 24.3.1971, Mephisto, hintergruende/h/bettina-wulff-klagt-gegen-google/.
decision available in German at: http://openjur.de/u/31670. 100 Oberlandesgericht Köln, 15 U 199/11, 10.5.2012, decision in
html. In this decision, the right of oblivion of a deceased “public German available at: http://openjur.de/u/462365.html.
figure” was demanded by a family member. The publication of 101 Bundesgerichtshof, VI ZR 269/12, 14.5.2013, Scientology,
the book in which the fictional story was told was prohibited decision in German available at: http://openjur.de/u/627117.
based on the argument that the family member’s privacy was html; the High Court of Cologne subsequently applied the
infringed upon by such a publication. Moreover, the court legal reasoning. While the suggestions were deemed to be
refused to assess the freedom of expression since “arts and privacy infringing, the claim for damages was denied. Cf.
expression are two different things”. Oberlandesgericht Köln, Az. 15 U 199/11, 08.04.2014, decision
2 86 2014
in German available at: http://www.justiz.nrw.de/nrwe/olgs/ 116 Legislative Decree n. 47, 1948 (Legge 8 febbraio 1948, n. 47,
koeln/j2014/15_U_199_11_Urteil_20140408.html. Disposizioni sulla stampa).
102 Cf. Alessio Zaccaria/Mirko Faccioli, The Protection of Personality 117 Corte di Cassazione, I. Civ., n. 5259, 18.10.1984, http://www.
Rights against Invasions by Mass Media in Italy, in: Helmut dirittodellainformazione.it/materiale%20di%20ricerca/
Koziol/Alexander Warzilek (eds.), Tort and Insurance Law Vol. sentenza_decalogo.htm.
13 on the Protection of Personality Rights against Invasions 118 Corte di Cassazione, III Civ., n. 5525, 5.4.2012, decision
by Mass Media, Vienna 2005, p. 184. They state that “the available in Italian at: http://www.ilsole24ore.com/pdf2010/
right to privacy is one of the personality rights that (albeit SoleOnLine5/_Oggetti_Correlati/Documenti/Norme%20
not expressly governed by law) has been envisaged by legal e%20Tributi/2012/04/corte-cassazione-sentenza-5525-2012.
authors and case law”; Massimo Farina/Fabrizio Voltan, La nuova pdf?uuid=11fb990c-7fc2-11e1-a8f6-20908e87732a.
privacy, Florì 2011, pp. 6 et seqq.; Gerolamo Pellicanò/Giovanna
119 Supra note 107; Translation by Giusella Finocchiaro, Italian
Boschetti, Italy, in: Monika Kuschewsky/ Van Bael & Bellis, Data
Supreme Court: the right to oblivion to be protected with
Protection and Privacy, London 2012, p. 261.
newspaper archive updates, April 23, 2012, http://www.
103 Cf. Christian von Bar/Ulrich Dobing, The Interaction of Contract blogstudiolegalefinocchiaro.com/wordpress/2012/04/
Law and Tort and Property Law in Europe: A Comparative italian-supreme-court-the-right-to-oblivion-to-be-protected-
Study, Munich 2004, pp. 33 et seqq.; cf. also: Comparative with-newspaper-archive-updates/
Study on the Situation in 27 Member States as Regards the
120 Cf. Art. 11 (1c) Legislative Decree 2003/196.
Law Applicable to Non-contractual Obligations Arising out
of Violations of Privacy and Rights Relating to Personality, 121 Cf. Italian Data Protection Authority, Oblivion Rights, http://
Annex III, pp. 87 et seqq., available at: http://ec.europa.eu/ www.garanteprivacy.it/web/guest/home/docweb/-/
justice/civil/files/study_privacy_annexe_3_en.pdf. docweb-display/docweb/1336892; Finocchiaro/Ricci, supra
note 11, pp. 289 et seq.
104 Guisella Finocchiaro, Privacy e protezione dei dati personali –
Disciplina e strumenti operative, Bologna 2012, p. 6. 122 Robot Meta Tags allow programmers to control how a
webpage should be indexed and served to users in the search
105 Codice in materia di protezione dei dati personali, Decreto
engine’s results. An explanation for how programmers
legislativo 30 giugno 2003, n. 196. This code replaced the
may use Robot-Meta Tags to control page indexation is
previous Legislative Decree n. 675, 1996; cf. also Farina/Voltan,
provided by Google, February 17, 2012, https://developers.
supra note 102, pp. 6 et seqq.
google.com/webmasters/control-crawl-index/docs/
106 Cf. also Art. 11, (1c) of the Legislative Decree 2003/196. robots_meta_tag?hl=de.
107 Cf. Elena Bassoli, Art. 7 – Diritto di accesso ai dati personali 123 Italian Data Protection Authority, Decision December 11,
ed altri diritti, in: Guiseppe Cassano/Stefano Fadda (eds.), 2008, Archivi storici on line dei quotidiani: accoglimento
Codice in material di protezione dei dati personali, Commento dell’opposizione dell’interessato alla reperibilità delle proprie
articolo per articolo al testo unico sulla privacy D.legs. 30 generalità attraverso i motori di ricerca, Doc. 1583162, online:
giugno 2003, n. 196, Milano 2004, p. 67. http://www.garanteprivacy.it/web/guest/home/docweb/-/
108 Cf. Stefano Farra, Art. 11 – Regole generali per il trattamento docweb-display/docweb/1583162; cf. also Finocchiaro, supra
dei dati, in: Guiseppe Cassano/Stefano Fadda (eds.), Codice in note 90, p. 21.
material di protezione dei dati personali, Commento articolo 124 Tribunale Ordinario di Milano, 31.3.2011, 10847/2011, Padova
per articolo al testo unico sulla privacy D.legs. 30 giugno 2003, Maria Louisa, Google Inc v. Monanaro Romolo, http://www.
n. 196, Milano 2004, p. 92 citing Guilio Napolitano, Il diritto piana.eu/files/Ordinanza.pdf.
all’oblio esiste (ma non si dice), in Dir. inf., 1996, pp. 427 et seq.;
125 Tribunale Ordinario di Milano, 25.3.2013, 68306/2012, http://
cf. also Guiseppe Cassano, Il Diritto All’Oblio Nella Era Digitale,
www.oppic.it/index.php?option=com_docman&task=doc_
in: Guiseppe Cassano/Guido Scorza/Guiseppe Vaciago (eds.),
details&gid=490&Itemid=60.
Diritto Dell’Internet: Manuale Operativo, Wolters Kluwer Italia
2013, pp. 45 et seqq. 126 This decision is in line with similar cases handled in other
jurisdictions to which the Court expressly referred; among
109 Cf. Stefano Farra, supra note 108, p. 92.
others, the Swiss Jura Cantonal Court, 12.02.2011 available
110 Elena Falletti, L’Evoluzione Del Concetto Di Privacy E Della Sua in French at http://www.jura.ch/Htdocs/Files/v/11625.
Tutela Giuridica, in: Guiseppe Cassano/Guido Scorza/Guiseppe pdf/Justice/1_Instances_judiciaires/2_TC/Documents/pdf/
Vaciago (eds.), Diritto Dell’Internet: Manuale Operativo, CC2010117.pdf?download=1; cf. Marco Bellezza/Federica De
Wolters Kluwer Italia 2013, pp. 22 et seqq.; Farina/Voltan, supra Santis, Google not liable for Autocomplete and Related Searches
note 102, pp. 6 et seqq. ; cf. also GianLuca Pedrazzini, Privacy, results, Italian court rules, EU Regulatory, April 5, 2013,
in Alberto Clerici (ed.), Manuale di Informatica Giuridica, http://www.portolano.it/wp-content/uploads/2013/04/
Milano 2013, pp. 297 et seqq. Google-not-liable-for-Autocomplete-and-Related-Searches-
111 Cf. with respect to rectification the Legislative Decree n. 47, results-Italian-court-rules-Rapid-TV-News.pdf.
1948 (“Legge 8 febbraio 1948, n. 47, Disposizioni sulla stampa”); cf. 127 Cf. Is the EU compelling Google to become about.
also below the rectification right in the data protection act me?, Jonathan Zittrain, available at: http://blogs.
of Italy; cf. Finocchiaro, supra note 104, pp. 8 et seqq. stating, law.harvard.edu/futureoftheinternet/2014/05/13/
among others, that the Italian Supreme Court has established is-the-eu-compelling-google-to-become-about-me/.
a right to be left alone in 1975 and that the right of reputation
128 Jonathan Zittrain, Don’t Force Google to Forget, available at:
not only has close ties with the penal norms dealing with
http://www.nytimes.com/2014/05/15/opinion/dont-force-
defamation but is also interlinked with the civil right of honor.
google-to-forget.html?_r=0; Spain’s everyday internet warrior
112 Cf. Finocchiaro, supra note 104, pp. 16 et seq. who cut free from Google’s tentacles, The Guardian, May 13, 2014
113 Guiseppe Cassano, supra note 108, pp. 45 et seqq. available at: http://www.theguardian.com/technology/2014/
114 Cf. Finocchiaro, supra note 104, p. 18; cf. also Cassano, supra note may/13/spain-everyman-google-mario-costeja-gonzalez.
108, pp. 45 et seqq., stating that the normative fundament of
the right of oblivion in data protection law is found today
in Art. 11 Legislative Decree 2003/196 (cf. paragraph below);
Falletti, supra note 110, pp. 30 et seqq.
115 Cf. Finocchiaro, supra note 104, pp. 18 et seq.
2 87 2014
Jenny Metzdorf
The Implementation of the Audiovisual

Media Services Directive by National
Regulatory Authorities
National Responses to Regulatory Challenges
by Jenny Metzdorf,* PhD student at the Faculty of Law, Economics and Finance of the University of
Luxembourg
Abstract: The Audiovisual Media Services to receive information. This balancing act performed
Directive (AVMSD) which regulates broadcasting by national regulators may tip towards the former
and on-demand audiovisual media services is at the or latter depending on the national legal framework;
nexus of current discussions about the convergence social, political and economic considerations; as well
of media. The Green Paper of the Commission of April as cultural perceptions. This paper thus examines
2013 reflects the struggle of the European Union to how certain rules contained in the AVMSD are applied
come to terms with the phenomenon of convergence by national regulators. It focuses first on the definition
and highlights current legal uncertainties. The of an on-demand audiovisual media service and its
(theoretical) quest for an appropriate and future- scope. Second, it analyses the measures adopted with
oriented regulatory framework at the European a view to protection minors in on-demand services
level may be contrasted to the practice of national and third discusses national approaches towards the
regulatory authorities. When faced with new promotion of European works in on-demand services.
media services and new business models, national It aims at underlining the significance of national
regulators will inevitably have to make decisions and regulatory authorities and the guidelines these adopt
choices that take into account providers’ interests to clarify the rules of a key EU Directive of the “media
to offer their services as well as viewers’ interests law acquis”.
Keywords: Audiovisual Media Services Directive, VOD Services, VOCCCD services
© 2014 Jenny Metzdorf
Recommended citation: Jenny Metzdorf, The Implementation of the Audiovisual Media Services Directive by National
Regulatory Authorities National Responses to Regulatory Challenges, 5 (2014) JIPITEC 88, para. 1.
A. Introduction
1 The Audiovisual Media Services Directive (AVMSD) of broadcasting envisioning a market of “television
has been the subject of an enormous body of without frontiers”.1 In 2007, the Directive’s scope was
research. As the key legal document defining extended to on-demand audiovisual media (VOD)
the various pillars upon which the cross-border services.2 It henceforth distinguished between linear
provision of audiovisual media services is built in the (television broadcasting) and non-linear (VOD)
European Union (EU), its rules and approach have services applying different sets of rules to each. The
been investigated in-depth. When the Directive was break-through which was expected of the Directive
initially adopted in 1989, it regulated certain aspects in light of convergence of media, however, has
not been accomplished. Shortly after its adoption,
2 88 2014
The Implementation of the Audiovisual Media Services Directive by National Regulatory Authorities
discussions rekindled as to its modification in view environment and a possible revision of the AVMSD
of the emergence of Connected TV which seamlessly by pinpointing its most apparent deficiencies.
weaves the Internet and broadcasting together on
the television screen.3 So far, the Commission has
clung to the AVMSD and its graduated approach B. Criteria for VOD services
to regulation as the market potential of Connected
TV and similar services is gradually unfolding. The
Commission’s Green Paper of April 2013 which I. The definitions outlined
indeed asks crucial questions in fact reveals a high
level of uncertainty with regards to the current rules in the AVMSD
and future approach to Connected TV and other
hybrid services.4 4 Although a comprehensive (horizontal)7 reform of
the TwFD in light of growing convergence of media
2 In this state of flux, national regulatory authorities was rejected in 2007 in favour of the maintenance of
(NRAs) assume a pivotal role. Charged with the sector-specific regulation, the Directive’s scope of
regulation of audiovisual media services, they ensure application was slightly extended to cover television
the application and implementation of the AVMSD and “television-like”8 services subsumed under the
on a daily basis. While their structure, composition term “audiovisual media service”.9 In line with Art.
and mandate are contingent on national legal 1 (1) (a) (i) AVMSD, an audiovisual media service is
frameworks, they generally act as intermediaries defined as:
between the state and the industry. Where the
national media laws transpose the Directive “a service as defined by Articles 56 and 57 of the [TFEU]
verbatim, the position of NRAs is enhanced. This which is under the editorial responsibility10 of a media service
is particularly true for rules couched in vague and provider and the principal purpose of which is the provision
of programmes, in order to inform, entertain or educate, to
general terms which have to be interpreted and
the general public by electronic communications networks”.11
applied in specific contexts and under specific
circumstances at national level. NRAs thus enjoy a
5 Thus, audiovisual media services are further
certain margin of discretion which is constrained
classified as television broadcasting (linear services),
mostly by the scope of the mandate granted by the
on-demand audiovisual media services (non-
state and the freedoms associated with the former.
linear services) as defined in Art. 1 (1) (e) and (g)
The establishment by the Commission of a European
AVMSD respectively and audiovisual commercial
Regulators Group for Audiovisual Media Services in
communication as stipulated by Art. 1 (1) (a) (ii) in
February 2014 demonstrates increasing awareness
conjunction with Art. 1 (1) (h) AVMSD. While a VOD
of the significance of NRAs and their contribution
service may be viewed at the “moment chosen by
in shaping the future regulatory landscape.5 The
the user and at his individual request”12, broadcasts
Regulators Group constitutes, inter alia, a forum
are transmitted simultaneously to the general
for “exchange of experience and good practice”.6
public “on the basis of a [chronological] programme
This paper starts from similar premises employing
schedule”13. The differentiation between linear and
a bottom up lens by examining the guidelines and
non-linear services is crucial for the application of
codes adopted by NRAs as well as their practice.
the graduated approach to regulation.14 Accordingly,
3 To this effect, this paper sketches the most VOD services are regulated more lightly whereas a
pressing challenges NRAs are currently facing in tighter regime applies to television broadcasting.
implementing the AVMSD at the grassroots. In On top of the complexities of distinguishing linear
its first section, it examines the criteria defining from non-linear services, further difficulties emerge
an (on-demand) audiovisual media service in when delineating audiovisual media services from
order to determine the regulatory remit of NRAs. other kinds of services exempted from regulation,
Interpretation and specification of the criteria the boundaries of which are continually blurring.15
is of enormous practical effect as it will identify The preamble to the Directive clarifies that it does
the set of rules (and possibly laws) applicable to not apply to “any form of private correspondence”,
relevant providers. Secondly, this paper explores “games of chance (…), other forms of gambling
the measures taken by NRAs to protect minors (…) and search engines”.16 It also exempts user
from unsuitable content contained in non-linear generated content which is shared or exchanged
services and thirdly, it details the activities of NRAs “within communities of interest”.17 Where “text-
in respect of the promotion of European works in based services” (merely) accompany an audiovisual
such services. Sections two and three illustrate the service, the Directive applies.18 However, recital 28
graduated approach to regulation which regulates AVMSD indicates that “the scope of this Directive
television broadcasting more intensively than on- should not cover electronic versions of newspapers
demand services. Succinctly, this paper endeavors and magazines”. Although the preamble to the
to contribute to the debate about future regulatory AVMSD is, in principle, non-binding, it nevertheless
responses to an ever more convergent media serves as a valuable point of reference, particularly
2 89 2014
Jenny Metzdorf
for NRAs when implementing and applying the minutes. Except for the title of the videos and a brief
AVMSD “on the ground”.19 description of the most recent video, all material
provided was audiovisual in character.
6 In several countries, recital 28 AVMSD has moved
into the limelight of regulatory activities concerning 8 In its determination, KommAustria examined the
VOD services.20 The printed press increasingly offers cumulative criteria defining an audiovisual media
its services online in order to meet competition service as stipulated by Sec. 2 No. 3 Audiovisuelle
from news blogs or other websites providing text- Mediendienste-Gesetz (AMD-G) which transposes Art.
based material. The websites of newspapers or other 1 (1) (a) AVMSD employing similar wording. More
magazines increasingly contain videos as a popular concretely, KommAustria enquired whether the
extra in addition to written articles which are their service, if covered by the AMD-G, constituted an on-
primary business. The pertinent question arising demand audiovisual media service in line with Sec.
from this phenomenon is at what point a service 2 No. 4 AMD-G which emulates Art. 1 (1) (g) AVMSD.
offering mixed types of content should be subjected If this were to be affirmed, the service provider
to the regulation applicable to VOD services. The would have been required to notify the service
question hinges on the criterion of principal purpose pursuant to Sec. 9 (1) AMD-G. The case centered
as prescribed by Art. 1 (1) (a) AVMSD. The regulators around two criteria. First, KommAustria posited
of Austria, Denmark, the Flemish Community of that the videos constituted programmes within the
Belgium21, Slovakia22 and Sweden23 have found that meaning of Sec. 2 No. 30 AMD-G which reflects Art.
parts of websites of electronic versions of newspapers 1 (1) (b) AVMSD. It points out that the notion of
served the required purpose and were thus classified programmes was not based on a minimum length.27
as stand-alone VOD services.24 By contrast, websites Rather than prescribing a quantitative requirement,
of several British newspapers have been excluded as KommAustria referred to the comparability to the
VOD services, although being the subject of intensive form and content of the contested service with such
investigations by the competent regulatory agencies. programmes ordinarily shown on TV. In line with
Thus, the following section analyses in detail the recital 24 AVMSD, KommAustria argued that the
decisions of the Austrian and British regulatory videos featured on the TT service constituted self-
bodies in order to shed light on their assessment contained items which targeted the same audience
and motives. as television broadcasts and offered comparable
content in comparable form.28 Second, KommAustria
investigated in the principal purpose of the video
II. Video section of online section. It found that this sub-section could be
separated from the remainder of the service as it
newspaper classified as fulfilled an independent function and was not merely
VOD service in Austria accessory to the text-based materials.29 Hence, the
video section was considered a user destination in
7 In September 2012, the Austrian regulator, the its own right and was regarded by KommAustria as
Kommunikationsbehörde Austria (KommAustria) a stand-alone service. Interestingly, KommAustria
qualified the video section of the regional responded to the provider’s submission that
newspaper “Tiroler Tageszeitung” (TT service) as it primarily provided written content that a
an on-demand service, a determination which service provider could not evade the application
was upheld in December 2012 by the Austrian of the AMD-G simply for that reason. Even if an
Bundeskommunikationssenat (Federal Communications insignificant part (in terms of quantity) of the
Senate, BKS) which was the appeal instance for overall offer encompassed audiovisual content,
decisions issued by KommAustria at that time25.26 The such could nonetheless be viewed as a separate
website at issue (http://www.tt.com) contained the audiovisual media service within the meaning of the
online version of the newspaper and its homepage AMD-G.30 It was not decisive whether the audiovisual
brought the user to the news section by default. content was grouped in a sub-section of the website
The content was arranged in sub-sections such as even if the domain used could be indicative of the
“Sports”, “Leisure”, “Video” or “Service” which independence of the service.31 In the appeal instance,
were accessible via the main menu. In all categories, the BKS confirmed the assessment undertaken by
individual written items were accompanied by videos KommAustria in entirety. With regards to the
which served to complement the former. The video comparability of the videos with programmes
section was designed and branded in the same way as broadcast on TV, it emphasized that the videos
the website and also contained the same navigation covered concrete subject matters.32 Furthermore, the
tools. The videos were catalogued in chronological BKS qualified KommAustria’s position with respect
order and a separate section underneath presented to the principal purpose test. It stressed that the
the most popular videos. The whole catalogue overall appearance of a service should be taken into
was available via certain “categories”. The videos account albeit excluding other services offered by
constituted editorial content, professionally made the same provider.33 In case of TT service, the video
and typically lasted between 30 seconds and several section did not, however, merely constitute a “side
2 90 2014
effect”34 but rather encompassed almost exclusively understood fully on [their] own”.47 Where a service
audiovisual content which was not of secondary or comprises both audiovisual and written material,
supplementary nature to the written content. The Ofcom suggested that the principal purpose test
video section could thus have been consumed, used would be satisfied where “the balance of the material
and offered independently of it being embedded in is more likely significantly to lean towards the audio
the TT service.35 In sum, the Austrian regulatory visual” implying that the text-based part of the
bodies have asserted their authority over providers website is “brief and/or merely an introduction to,
of websites of electronic versions of newspapers or summary of, the audio visual material” and is not
by classifying a sub-section of the entire offer as the “primary means” of conveying information to
a non-linear service. They have thereby detailed the user. 48 Ofcom concluded on the basis of these
two important criteria defining an audiovisual characteristics that the video section of the website
media service. Importantly, the case of TT service of the Sun did not constitute a non-linear service.49
has reached the Court of Justice of the European It criticized ATVOD for having focused on the video
Union (CJEU) which is asked to pronounce on two section while according insufficient attention to the
preliminary questions referred by the Austrian “website as a whole”.50 Still, Ofcom did not refuse
Verwaltungsgerichtshof (Administrative Court).36 The the application of the rules concerning non-linear
questions concern firstly, the comparability with services to electronic versions of newspapers per
programmes broadcast on TV and secondly, whether se.51 An interesting case which could cross this
a part of a service pertaining to an online newspaper threshold is currently pending before Ofcom. In a
can be insulated for the purposes of the AVMSD.37 determination of August 2013, ATVOD considered
that the video section of the Vice website (http://
www.vice.com/en_uk) was a VOD service.52 The
III. Detailed guidance on principal portal is comparable to an online version of a
magazine. Its video section features the latest videos
purpose by British regulator which are accompanied by an explanatory note as
well as shows of over ten minutes in length. The
9 Like the Austrian regulator, the British co- website is also made available on YouTube where it
regulator38, the Authority for Television On Demand appears to correspond largely to the video section. In
(ATVOD)39 has struggled with the legal evaluation of contrast to its precedents, the case of Vice appears,
electronic versions of newspapers. In a series of cases to put it bluntly, ‘much more audiovisual’. Still, it
which at first glance seem similar to the Austrian remains to be seen whether Ofcom which so far has
case discussed above, it determined that the video rejected all attempts of ATVOD to regulate sections
sections of several online versions of newspapers of websites will follow ATVOD’s assessment.
constituted on-demand services within the meaning
of Sec. 368A Communications Act 2003 (CA 2003)40 10 When examined together, the practices of the
holding that the relevant providers had failed to Austrian and British regulatory bodies paint two
notify their services.41 The first case decided on opposing pictures regarding the classification of
appeal by the Office for Communications (Ofcom) online newspapers as VOD services. Still, the reasons
was “Sun Video”42 which constituted a landmark for the decisions and arguments brought forth by
decision in which Ofcom gave detailed guidance regulators are, to a certain extent, similar like the
on the interpretation of the principal purpose question whether the service constituted a stand-
test43.44 Ofcom outlined eight (non-exhaustive alone service and the rejection of the application
and non-cumulative) characteristics from which of a purely quantitative approach to determining
it could be inferred that the principal purpose the primary character of a service. Nonetheless,
was indeed the provision of programmes within certain differences can be identified with respect to
the meaning of Sec. 368A (1) (a) CA 2003. It was the comparability of videos to programmes diffused
thus characteristic of an on-demand service to be on TV. While videos of relatively brief duration
provided on “its own homepage through which it is (maximum of several minutes) were considered
accessed” or on a sub-section where the audiovisual TV-like in Austria, it appears as if such short videos
material is catalogued.45 Furthermore, a service was would (taken by themselves) not be conclusive of a
considered of having the required purpose where VOD service in the UK. Knowledge about such subtle
the audiovisual content was “presented or styled but existing differences in practice of NRAs is crucial
(and marketed) as a television channel” or where for service providers. Editors of newspapers who
there existed only a “limited number of access [or wish to make their offers available online will have
content] links between the relevant audiovisual to be aware of the consequences of the design and
material and other content”.46 In addition, Ofcom structure of their services. They will have to reckon
suggested that the principal purpose implied that with the potential involvement of the regulatory
the audiovisual material was “of substantial duration authorities for the media even if their activities
and/or comprise[d] complete programmes rather would formally fall under press regulation.53
than “bite-sized” clips or extracts from longer
programmes” which could be “watched and
2 91 2014
Jenny Metzdorf
11 If editor’s chief objective is to provide an online material which “might seriously impair” minors is
version of their printed medium, they will have nonetheless specified in Art. 27 AVMSD (applicable
to devise their websites accordingly by making to television broadcasts) which could be consulted
sure that video content is not excessive and truly by analogy. Accordingly, programmes “that [among
embedded in text-based material. If they plan to other] involve pornography or gratuitous violence”
group the audiovisual material in a separate video meet this test. In the absence of any clear correlation
section, they will have to carefully consider whether between Art. 12 and 27 (1) AVMSD, Member States
notification of a VOD is necessary. The Austrian remain entirely free to define the kind of content
case currently pending before the CJEU might offer which is qualified as seriously detrimental to
further indications in this respect. Regardless of children.56 The following section is devoted to the
the outcome of this case, should the application of guidance and practice by the British regulatory
the AVMSD or respectively the relevant national bodies which seem to have assumed a pioneering
law be affirmed, operators will be obliged to abide role within the EU clamouring for the strengthening
by certain standards such as the prohibition of of the protection of minors on the Internet.
programmes containing incitement to hatred or the
safeguarding of the protection of minors, a subject
discussed below. II. Application of the standard
in the United Kingdom
C. Protection of minors 13 In the United Kingdom, Art. 12 AVMSD is transposed
in VOD services by Sec. 368E (2) CA 2003. Sec. 368E (2) CA 2003 which
reproduces grosso modo the text of the Directive
but is more detailed by specifying the exact age
I. The standard according (eighteen years) of persons addressed by the rule.
Since the formulation contained in the national act
to the AVMSD transposing the Directive is equally imprecise, it falls
to the NRAs to interpret its exact scale and scope.
12 The protection of minors from unsuitable (e.g. ATVOD as the competent co-regulator monitors the
offensive or sexually explicit) audiovisual content application and implementation of the statutory
has been a constant policy concern which has rules. In order to help the industry to conform to the
been reflected in the Directive since its initial requirements imposed on service providers, ATVOD
adoption in 1989. Art. 22 TwFD (now 27 AVMSD) has accumulated in its guidance the statutory rules
was amended in 1997 and subsequently required which are supplemented by (non-binding) guidance
broadcasters to identify programmes which were on their meaning and enforcement.57 Rule 11 sets out
susceptible to having a damaging effect on children ATVOD’s approach to the protection of minors. It
and adolescents and which were broadcast in highlights that ATVOD has pursued a precautionary
unencoded form on free TV. 54 The extension of the approach which is backed by Government and
scope of application of the Directive in 2007 was Ofcom.58 In spite of the lack of any conclusive
accompanied by the inclusion of a rule purporting evidence about the harm caused to minors by
to protect minors in on-demand audiovisual media programmes containing sexually explicit material,
services. Although Art. 12 AVMSD borrows from ATVOD is satisfied that there is a sufficiently strong
the wording of the provision protecting minors correlation justifying precautionary measures.59
in broadcasts, the former is less restrictive than It follows that ATVOD has established a threshold
the latter illustrating the graduated approach to of material it considers harmful.60 This threshold
regulation. Thus, Art. 12 AVMSD prescribes that on- is fixed by reference to the classification scheme
demand services which “might seriously impair the of the British Board of Film Classification (BBFC),
physical, mental or moral development of minors in particular its R18 category. The distribution of
are only made available in such a way as to ensure such works is restricted to “specifically licensed
that minors will not normally hear or see [them]”. cinemas (…) and sex shops”.61 According to ATVOD’s
It follows that service providers are obliged to put Rule 11, this includes inter alia “highly sexualized
in place the (technical) measures whereby access portrayals of children”, “pornographic content
to seriously harmful material is denied to minors which is likely to encourage an interest in sexually
(typically under-18’s, albeit depending on national abusive activity” (e.g. paedophilia, incest or non-
context). In line with recital 60 AVMSD read in consensual sex) or “involves an act which may cause
conjunction with the Recommendation of 2006 of the lasting physical harm”. In addition, any depiction
European Parliament and the Council55, “personal of “sexual violence”, “sadistic violence or torture”
identification numbers (PIN codes), filtering systems and “real injury, violence or death presented with
or labeling” could be employed to this effect. Art. insufficient contextual justification” is prone to
12 AVMSD lacks any indication as to the type of being classified as harmful material.62 Briefly, the
material covered by the rule. The vague formula of type of material covered by Rule 11 is summarized
2 92 2014
bluntly as “hardcore pornography”.63 Since such implicitly the AVMSD) was treated separately. While
content is not completely banned, providers of ATVOD regarded Playboy TV UK/Benelux Limited to
non-linear services are obliged to limit access to control editorial decisions (in other words, to have
persons of age. In this respect, ATVOD requires “editorial responsibility”, one of the cumulative
that an “effective Content Access Control System criterion defining an audiovisual media service)75,
(“CAC System”)” is installed “which verifies that the Ofcom, by contrast, consented that the provider
user is aged 18 or over at the point of registration had relocated to Montreal, Canada and therefore
or access” of the service.64 In practice, unsuitable was no longer (as at September 2012) subject
content is concealed behind a “pay wall” which can to UK jurisdiction as a “genuine reorganisation
be passed by payment methods which are restricted [had occurred] including redundancies in the UK
to persons of age (such as payment by credit card).65 and the taking on of responsibilities by staff in
ATVOD considers permissible similar means which Montreal”.76 Although Ofcom ruled on the matter,
corroborate age on the basis of “an independent and ATVOD remains discernibly distrustful of providers
reliable database, such as the electoral roll”.66 establishing abroad (outside the EU) in order to
evade stricter legal requirements applicable in the
14 Throughout the past years, ATVOD has proven a UK (in the EU). Such “tube sites” offer free hardcore
robust regulator by rigorously enforcing Rule 11. pornographic material as honey pots (or “shop
In fact, it seems to have prioritized the protection window”)77 in order to attract user’s attention which
of minors in on-demand services, a subject which is is subsequently redirected to complementary paid
repeatedly discussed in its policy documents.67 The services necessitating subscription. Interestingly,
number of violations detected by ATVOD between such websites are very popular with British users78
2012 and 2014 underlines this impression. Between but they have been anathema to ATVOD which does
2012 and 2014, it has found 30 UK providers in not have jurisdiction over them for their lack of
violation of Rule 11 and thus Sec. 368E (2) CA 2003.68 establishment in the UK.
The effect of its determinations is declaratory. ATVOD
may, in cases of grave and repeated infringements
refer the matter to Ofcom for imposition of sanctions III. Further initiatives by the
pursuant to Sec. 368I CA 2003.69 In January 2013,
Ofcom imposed a total fine of £100.000 on the service British co-regulator
provider Playboy TV UK/Benelux Limited for two of
its services.70 ATVOD had previously determined that 16 Against this backdrop, ATVOD published a research
its services “Demand Adult” and “Playboy TV.co.uk” report which found evidence of “significant
violated Rule 11 by failing to install an effective CAC underage access from the UK to adult websites”.79
system.71 The two websites displayed a warning about For this reason, it recommended that first, the CA
the offensive character of the content offered next 2003 be amended to specify that material rated R18
to two links reading “Enter. I am over 18” and “Exit would be characterized as impairing minors, second,
if you are under 18”. Following the links brought the AVMSD be modified accordingly to establish a
the user to the respective homepages. The “Demand uniform standard across the Union and third, further
Adult” website even contained free access to stills of legislation be devised to allow the UK payments
pornographic nature while access to the full video industry to prevent cash flows from the UK to
catalogues of both services was opened only upon tube sites making available pornographic content
payment (either pay per view or full subscription). to minors.80 ATVOD’s suggestions, while proactive
The payment services (“Pay Wizard” and “CCBill. and innovative, also raise a number of concerns
com”) allowed for debit card payment and transfers regardless of the validity of the underlying objective
via regular bank accounts and thus could be used by of the protection of minors. Any specification of
underage persons. Hence, ATVOD concluded that the type of content which is considered seriously
the measures designed to restrict access to under- harmful to children would have to rely on solid and
18’s could be “easily penetrated by minors and more profound scientific evidence than the statistics
therefore could not be regarded as being effective in included in ATVOD’s report.81 The metaphor of a
securing that such persons will not normally see or “slippery slope”82 could also be conjured up in this
hear the relevant material”.72 Ofcom, in its decision, respect whereby the explicit prohibition of hardcore
sanctioned the provider for failing to take corrective pornographic content is viewed as a first step leading
action (after being made aware of its negligence by to the banning of less extreme forms of sexually
ATVOD) during a prolonged period of roughly seven explicit material in the future. Such a development
weeks.73 The service provider had instead informed would seriously impact on the fundamental right
ATVOD of its “intention to remove the service from of the freedom of expression. In a similar vein, a
UK jurisdiction”.74 modification of Art. 12 AVMSD as desired by ATVOD
seems doomed to failure in view of considerable
15 The question of whether the service provider was discrepancies in cultural and social perceptions
established in the UK for the purpose of Sec. 368A among Member States which are reflected in the
in conjunction with Sec. 368R (5) CA 2003 (and different national classification systems and rating
2 93 2014
Jenny Metzdorf
schemes concerning programmes broadcast on TV. D. Promotion of European works

In addition, any amendment referring to “hardcore
pornography” (or the like) would still be contingent
in VOCCCD services
upon interpretation by NRAs and ultimately national
(or the European) judiciaries.
I. The standard set out
17 Furthermore, ATVOD’s lobbying for new legislation in the AVMSD
to attack the business model of “tube sites” by
cutting off monetary flows from the UK seems
18 As with the protection of minors, the promotion of
disputable as it would implicitly extend ATVOD’s
the production and distribution of European works
reach beyond UK borders. In fact, ATVOD would pass
on television has been a policy concern which was
on the task of regulating the protection of minors to
integrated in the original TWFD of 1989. It required
the private sector, in particular to commercial actors
that broadcasters dedicate a certain share of their
like Visa, MasterCard or PayPal. For the purpose of
programmes to European works and support the
the prevention of payments, it is unclear whether
programmes of independent producers by financial
providers of such systems would have to enquire
or editorial means.85 Unlike the protection of
about the nature of the content delivered to the
minors, an objective seemingly approved of by all
user as they typically only process the financial
Member States, the aims and in particular the means
transaction lacking knowledge about the actual
whereby the cultural objectives of plurality and
product or service purchased. It is furthermore
diversity of content have been advanced under the
unclear at what point of the transaction access to
Directive have polarized countries. Not only is the
the (pornographic) service would be blocked, at the
definition of European works86 broad and prone to
time of the request for payment (when it is verified
favouring national language films or those produced
that the credit card holder has sufficient credit to
nationally rather than stimulating the cross-border
purchase a product or service) or at the time of the
circulation of multi-national works87, the wording
actual payment (when the total amount owed is
of the Directive is ambivalent and rather soft.88
deducted from the account). Moreover, it is unclear
When its scope of application was extended, the
whether any UK citizen would be denied access
imprecise language of the provisions applicable to
to such websites, even those of age, despite the
broadcasting (Art. 16 and 17 AVMSD) was replicated
material being legal (albeit rated as R18). Whether
in the provision concerning VOD services (Art. 13
legislation will eventually be adopted in the UK and
AVMSD). Thus, Art. 13 (1) AVMSD encourages
to what extent will have to be critically observed.
providers of on-demand services to “promote,
The protection of minors as an indispensable public
where practicable and by appropriate means, the
interest concern would nonetheless have to be
production of and access to European works”. The
balanced with fundamental rights, above all, the
phrase “where practicable and by appropriate
freedom of expression (entailing the right to receive
means” stems from the quota rules for broadcasting
pornographic information) as well as the right to
and expresses a “political compromise”.89 In order to
privacy. In brief, ATVOD’s practice and policy
gain a majority for the inclusion of the dispositions
documents discussed above underline its active role
in the Directive, they were formulated in such a way
in promoting the protection of minors in on-demand
as to give service providers, especially smaller and
services. In interpreting the (broadly formulated)
less solvent providers some leeway with regards to
statutory rules, it has developed a standard through
their fulfilment.
its practice which seems sufficiently detailed for
service providers to foresee prosecution by ATVOD. 19 Furthermore, Art. 13 (1) AVMSD indicates that
It has thereby strengthened its own position and promotion may refer to “the financial contribution
standing in the industry. Still, the transformation of made […] to the production and rights acquisition of
its standards into binding legislation would have to European works or to the share and/or prominence
be accompanied by an increase in transparency of the of European works in the catalogue of programmes”.
underlying motives and objectives pursued as well Recital 69 AVMSD is only marginally more specific by
as an analysis of the necessity and proportionality pointing to the “attractive presentation of European
of the measures in order to minimize interference works in electronic programme guides” as a form
with the interests of stakeholders, in particular of support envisaged by Art. 13 AVMSD. Still, the
fundamental rights. The example chosen above is rationale of the TWFD and its television quotas was
exemplary of many NRAs struggle to adapt national extended to the online environment. This has been
media legislation to the realities of the ubiquity of criticized as the user bears ultimate control over
the Internet83 where long-established standards (like the content consumed and selects the programmes
the protection of minors) for traditional modes of which cater to his or her tastes (regardless of the fact
transmission have come under pressure.84 that a catalogue comprises a majority of European
works).90
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20 Not surprisingly, the Commission found in its first website by enhancing their visibility on the primary
report on the application of Articles 13, 16 and 17 destination of users, providers’ homepages.
AVMSD of September 2012 that in spite of the success
of the well-established quotas the proportions of 22 In its report about the application of the Decree
which has been outdone in many Member States, the published in November 2013 drafted on the basis of
transposition and above all enforcement of Art. 13 consultations of stakeholders, the French regulatory
AVMSD in national legal orders have been restrained authority, the Conseil Supérieur de l’Audiovisuel (CSA,
and are more problematic.91 The Commission also hereinafter French CSA) identified difficulties
noted fundamental discrepancies in conditions and providers encountered in the practical application
developments of the market for VOD services92. of the quota rules. The responses by the French
Policy makers and national regulators appear CSA are worthwhile with a view to the immediate
hesitant, pursuing a “wait and see”93 approach in application and enforcement of the rules in practice
order not to stifle innovation of a nascent industry as well as potential amendments to the legislative
and allow providers to build attractive online offers framework.98 Thus, the French CSA clarified that the
appealing to large parts of the public. Still, some quota applied on an annual basis allowing providers
countries which have traditionally hoisted the to derogate (even if minimally) from the strict
“quota flag” for TV have fervently advocated for proportions and front page presentations.99 Above
efficient enforcement of comparable rules for non- all, the French CSA acknowledged the restrictiveness
linear services. While a conventional approach is of Art. 13 VOD Decree exclusively focusing on the
applied in France94, an innovative solution focusing homepage of providers which, in fact, constitutes
on enhancing “prominence” has been sought by only one access point for users. Hence, it proposed
the regulatory body of the French Community the recognition of separate sections or buttons
of Belgium.95 In addition, the Dutch approach to dedicated to European and French works, search
monitoring shall serve as an example underlining tools by origin of productions and promotional
the pragmatism necessary for the enforcement of activities of providers.100 The Commission, in its staff
this provision. working document accompanying the report on the
application of Art. 13, 16 and 17 AVMSD also referred
to these criteria when enumerating “performance
II. Quota rule for VOD indicators” which Member States could take
into account when interpreting and specifying
services in France the obligations for providers pursuant to Art. 13
AVMSD.101 Interestingly, the French CSA highlighted
21 Art. 13 AVMSD is transposed by Art. 12 of the French the increasing significance of recommendation
Décret relatif aux services de médias audiovisuels à la tools. On the basis of personal data, an algorithm
demande (VOD Decree 2010)96 which stipulates that is programmed which recommends audiovisual
providers reserve 60 percent for European works productions to individual users according to their
and 40 percent for French works from the total personal preferences and interests and/or previous
number of programmes included in the catalogue.97 behaviour and consumption patterns. The French
Interestingly, French works are considered CSA thus advocated their use for the purpose of
European works for the purpose of the quotas. If promoting European and French works in case of
one were to deduct the support for French works websites offering the possibility to personalize the
(assuming that all providers meet the target for homepage.102 Yet, French providers seemed little
French works and do not go beyond the threshold enthused about the integration of a ‘European or
set for European works) from the overall goals, French factor’ into their algorithms arguing that the
the support for European works appears rather biasing of the algorithm/software would infringe
insignificant or at least weak in comparison to the on their editorial freedom and the neutrality of
protection afforded to the national film industry. the recommendation tool.103 Such instruments also
Yet, the definition of European works set out in Art. raise more general questions about the collection of
1 (1) (n) AVMSD does not require a cross-border personal data and their use and any tracking of user
element (like co-productions) but is deliberately behaviour should be made transparent (by asking
open to accommodate national productions stricto the user to consent). The fact that the French CSA
sensu. Above all, Art. 13 VOD Decree 2010 specifies proposed to restrain the ‘European and French
that service providers are to permanently present recommendation tools’ to personalized homepages
a substantial proportion of the quota on their (and negated them for standardized homepages)
homepage. To this effect, the Decree explicitly which are in any case based on user’s data (voluntarily
indicates that the mentioning of the title of the work or so it is assumed) given to the provider, does not
on the home page is not sufficient. Instead, providers solve the data protection issue. Finally, the French
are expected to advertise the relevant works (by CSA rejected the introduction of exemptions for
banner ads, for example) and display trailers or “non-generalist” services.104 Arguing that a general
samples. This rule aims at preventing the burying exception would undermine the quota scheme, the
of European and French works in sub-sections of the French CSA nonetheless conceded that a VOD could
2 95 2014
Jenny Metzdorf
target only a segment of the public and could cater screened on provider’s homepages or during TV
specifically to that segment. It agreed to propose a commercials, the creation of special categories and
relaxation of the quota obligations in compensation the reference to such works in magazines, feature
for provider’s commitment to offer additional articles or communications send to its users.108
services to the European and French works diffused Against this background, the Belgian CSA published a
such as the sub-titling or funding for the promotion recommendation in June 2010 on the interpretation
and their production or the participation in events of Art. 46 AMVS Decree going beyond what was
and shows.105 Such derogations would presumably provided in the preparatory documents of the AVMS
have to be negotiated on case-by-case basis. The Decree.109 Hence, the regulator emphasized that the
French CSA’s outright refusal to recommend to the provider can influence the conditions of access to
French government the formulation of an exception European and Belgian works by the interface of the
clause to Art. 12 VOD Decree demonstrates the high website. Thus, access by buttons entitled “European
value the quota rules have had in France and the films” or “films of the French Community” facilitates
regulator, as the guardian of the rules, is unwilling according to the Belgian CSA the visibility of such
to sacrifice them in view of less generalist service works. In this respect, the regulator pointed out
providers. This picture is confirmed when globally that the works should be included in multiple
assessing the legislative and executive framework categories to allow users to find them coincidentally
in France. The VOD Decree has extended the and avoid collating such programmes in one place
well-established scheme for broadcasting to VOD of the website.110 Thus, a substantial amount of
services. Some reflections about the nature of non- these works should be presented in categories like
linear services are nonetheless expressed in Art. “new releases”, “last chance”, “great classics” or
13 VOD Decree which are, however, limited to the “favourites” which frequently guide users through
homepages of providers. In order to guarantee the vast amount of content available.111 In addition,
the application of the rules in practice, the French the Belgian CSA proposed to include the works in
regulator made some compromises in its report categories for which discounts were offered as long
allowing for other ways and “places” (like sub- as the films were not devalued.112 With respect to
pages) to promote European and French works and provider’s advertising activities, the Belgian CSA
exceptions to the quota obligations to be negotiated suggested to refer to European or Belgian works,
on individual basis. events, production teams or actors in all commercial
communications available including magazines,
special editions or channels or programmes devoted
III. Prominence as the decisive to self-promotion.113
criterion in the French 24 These guidelines114 are very detailed and set out
Community of Belgium precise requirements for providers. The structuring
of the catalogue in parallel to other promotional
23 In contrast to the rather rigid legal order in France, activities advocated by the CSA in its recommendation
the regulatory authority of the French Community appear reasonable for their low level of intrusiveness
of Belgium, the Conseil Supérieur de l’Audiovisuel (CSA, with provider’s editorial freedom.115 In addition, the
hereinafter Belgian CSA)106 has actively shaped the costs of promotion remain bearable even if such
interpretation of the disposition contained in the measures are not entirely gratuitous as providers
Decret coordonné sur les Services de Médias Audiovisuels might find themselves investing in advertising spots
(hereinafter AVMS Decree) allowing for a flexible for European works which they would otherwise
and innovative approach. In the French Community, not have promoted. In similar vein, the promotion
Art. 13 AVMSD is transposed by Art. 46 AVMS of European or Belgian works “is not detrimental
Decree. Art. 46 AVMS Decree is more specific than to viewer numbers”116 but instead enhances the
the Directive by indicating that the list of European attractiveness of the overall offer. Since catalogues
and Belgian (produced in the French Community of may comprise an infinite number of programmes
Belgium) works included in the catalogues should be (figuratively speaking), providers do not have to
attractively presented. The French Community thus make any trade-offs like broadcasters would have
used the leeway accorded by the Directive selecting to do when determining the slot when a programme
“prominence” as the primary means of promotion is scheduled for transmission. In 2011 and 2012, the
while refraining from establishing a quota scheme Belgian CSA conducted three evaluations of the
or soliciting investments from VOD providers. The implementation of its recommendation thereby
proposal of the AVMS Decree of January 2009 strongly maintaining close contact with the providers
criticized the transfer of the quota regime from established in the French Community (Belgacom,
linear to non-linear services for its devastating effect VOO and Universciné).117 It found in its opinion of
on the development of new services and innovative June 2012 that the interface of the websites was not
business models.107 Instead, it advocated for all kinds necessarily controlled by providers, some of which
of promotional techniques including advertisements relied on recommendation tools based on pre-
determined algorithms or other mechanisms like
2 96 2014
alphabetical listings of programmes.118 The Belgian report on the amount of European works as well as
CSA underlined the importance of recommendation the investments (such as production or licensing
tools without, however going so far as the French costs) made in such programmes. 126 Above all, a
CSA in demanding that the systems should account third section of the reporting form is devoted to the
for European or national works.119 It concluded that “findability”127 of European works asking whether
European and Belgian works were accessed from the user can search for European works (whether
video platforms to an “acceptable” proportion.120 the origin of productions is indicated), whether tools
Yet, the Belgian CSA seemed to struggle with the have been developed which recommend relevant
establishment of a firm causal link between the works, whether a specific section devoted to
measures taken to increase visibility and the European productions has been created or whether
consumption of the promoted works inferring that any other instruments are used to reinforce the
further qualitative studies were necessary to that visibility of and access to European works.128 These
effect.121 indicators are broadly reminiscent of those set out
in the Recommendation of the Belgian CSA and
are considered to be “easy to apply in practice
IV. Reporting form as guidance and likely to provide good insight in the actual
performance of media service providers”.129 The
in the Netherlands drafting of a reporting form by the CvdM appears
to be a pragmatic solution which results in a higher
25 Finally, the supervision of Art. 13 AVMSD as degree of uniformity of responses by service
implemented in national legal orders encompasses providers and thus facilitates the comparability of
a reporting obligation pursuant to Art. 13 (2) AVMSD. the data provided. It avoids “high administrative
In order to monitor the progress and effectiveness of burdens or time-consuming exercises”130 for both
the rules, Member States are to provide reports to the parties, the service providers as well as NRAs. To
Commission which in turn allows the latter to assess this end, the reporting form seems to constitute
the EU-wide application of Art. 13 AVMSD in line a useful and proportionate method. In order to
with its third paragraph. The Directive does not lay meet the Commission’s request for verification,
down concrete reporting methods and thus leaves providers could supply screen shots of their
Member States a margin of discretion as long as the catalogue or disclose parts of their finances as far
general aim is abided by. The Commission in its first as confidentiality is guaranteed. Still, rigid reporting
report on the application of Art. 13, 16 and 17 AVMSD regimes appear problematic where the effectiveness
stressed that “effective monitoring” was crucial of promotional measures is questionable and
for the success of the rules and called on Member the market is volatile and evolving. In sum, the
States to establish monitoring systems which discussion above demonstrates how the NRAs of
verified providers’ reports.122 The question is how France, Belgium and the Netherlands have impacted
to construct an effective reporting mechanism as the on the implementation of Art. 13 AVMSD, each at
systematic and permanent oversight of provider’s different ‘stages’: while the French CSA clarified
catalogues is virtually impossible and unnecessary certain aspects of the detailed legislative framework
for the implementation of the provisions contained in a report on the application of the legislative
in the Directive. From the perspective of service instrument, the Belgian CSA issued specific guidance
providers, burdensome and costly collections of on the wide notion of prominence and the Dutch
data and their quantification and evaluation could CvdM outlined indicators in its reporting form for
be a factor influencing business decisions and providers. They thus helped to form the national
could, potentially, deter providers from locating in legal frameworks and enhance legal certainty for
a specific country. It seems that a relationship of providers.
trust which facilitates cooperation is beneficial for
the cultural objective sought here. The reporting
method selected by a Member State (or its regulatory
body) may equally reflect market conditions like the
E. Conclusion
number of VOD providers subject to its regulatory
remit and the precise tools employed for ensuring 27 This paper sheds light on the implementation of
compliance with Art. 13 (1) AVMSD.123 certain aspects of the AVMSD by NRAs. It focuses
on the rules concerning non-linear services,
26 In this respect, the Dutch regulator, the Commissariaat application of which currently represents the most
voor de Media (CvdM) devised a form at the beginning challenging issues in a rapidly transforming and
of 2013 (CvdM reporting form). The CvdM reporting converging media landscape. As recital 69 AVMSD
form includes instructions to service providers emphasizes “on-demand audiovisual media services
specifying the obligations imposed by Art. 3.29 have the potential to partially replace television
Mediawet 2008 (Media Act)124 which corresponds to broadcasting”. The market for VOD is evolving
Art. 13 (1) AVMSD almost to the letter.125 Accordingly, dynamically offering novel ways of communication
service providers pick a representative day and and distribution of information. 131 To this end, VOD
2 97 2014
Jenny Metzdorf
services bear not only huge economic potential just a glimpse of the diverse activities of the NRAs
but are also beneficial to cultural and social goals of EU Member States. They hint at the importance
thereby bolstering the freedom of expression and of certain standards (like the protection of minors or
the right to receive information, a fundamental the support for European works) for certain Member
right which stands in the centre of media law. The States and thus supposedly reflect the attitudes and
analysis of the AVMSD as implemented by NRAs, in public opinions of their peoples.
spite of its many technicalities and particularities,
constitutes an important factor which should be 29 Today, the phenomenon of Connected TV merging
integrated more forcefully in the discussions about previously separate media which are differently
the future regulatory framework for audiovisual regulated constitutes a major challenge which
media as it pinpoints the weaknesses of the Directive will have to be tackled in the future. This topic is
and suggests possible ways forward. It is clear that multi-facetted and not restricted to the AVMSD
national solutions may not be transferable to the as the only relevant legal instrument. Indeed, it
European level in copy/paste style and would affects standards like consumer protection (such
require the support by a majority of Member States as the protection of minors) or cultural values
implying similar perspectives and perceptions about (like the promotion of European works) set out in
a certain aspect. the AVMSD but it is also linked to data protection
(confer behavioural advertising and profiling) and
28 Yet, divergences of regulatory practice exist. These telecommunications law (confer infrastructure and
may be attributed to, among others, the vagueness of interoperability). It has become evident that the
the provisions set out in the AVMSD. To some extent, current tiers of rules prescribed by the AVMSD are
Directives are characterized by the construction of insufficient to deal with converging services. As
broad concepts which may be flexibly applied in a response to market developments, NRAs which
all Member States. As instruments of Secondary operate under the present legal framework have
Union law, they lay down the rules of the game (by shaped the audiovisual sector by regulation rather
establishing minimum standards for instance) while than waiting for new legislation which would be
Member States fill out the details. It is, however, accompanied by lengthy negotiations at European
little constructive if the players of the game do level. They have thus ensured legal certainty and
not know whether they play football or hockey. contributed to the flowering of audiovisual media
In other words, the scope of a Directive should be services within the European Union.
based on solid footing. The first section of this paper
demonstrates that the application of the AVMSD has * The author is a PhD student at the Faculty of
become instable in light of converging media such Law, Economics and Finance of the University
as the printed press and the audiovisual industry. of Luxembourg. She has worked on a research
Several NRAs found that the national media laws project supervised by Associate Prof. Dr. Mark D.
(and thus implicitly the AVMSD) applied to a specific Cole examining the national legal acts adopted to
section of online versions of newspapers. Recital 28 transpose the AVMSD into national legal orders; see
AVMSD which uncompromisingly exempts online www.medialaw.lu. The author would like to express
newspapers from the scope of the Directive will have her gratitude to Dr. Tarlach McGonagle, Institute
to be revisited if the AVMSD is opened for revision. for Information Law (IViR) of the University of
In the second section this paper draws attention Amsterdam, and to her colleagues Dr. Lawrence
to the implementation of the rule concerning the Siry and Bernd Justin Jütte of the University of
protection of minors in VOD services. NRAs are Luxembourg for their valuable assistance in drafting
confronted with business models geared to selling this paper.
sexualized content which if a certain threshold is
passed is classified by NRAs as harmful to minors. 1 Council Directive 89/552/EEC of 3 October 1989 on the
coordination of certain provisions laid down by law, regulation
This section raises not only questions as to the kind or administrative action in Member States concerning the
of content considered unsuitable but also wider pursuit of television broadcasting activities, OJ of 17 October
questions of jurisdiction and how this concept should 1989, L 298, p. 23 as amended by Directive 97/36/EC of the
be construed to account for a globalized society and European Parliament and of the Council of 30 June 1997, OJ
the Internet age.132 Due to the imprecise language of of 30 July 1997, L 202, p. 60.
the provision set out in the AVMSD, NRAs enjoy a 2 Directive 2007/65/EC of the European Parliament and of the
considerable margin of discretion provided that the Council of 11 December 2007 amending Council Directive
89/552/EEC on the coordination of certain provisions laid
national legislature has refrained from specifying
down by law, regulation or administrative action in Member
the law. The same holds true for the implementation States concerning the pursuit of television broadcasting
of the rule purporting to promote European works in activities (Text with EEA relevance), OJ of 18 December
non-linear services as examined in the third section 2007, L 332, p. 27 as codified by Directive 2010/13/EU of the
of this paper. It indicates that the rationale and logic European Parliament and of the Council of 10 March 2010, OJ
underlying the quota regime for TV broadcasting of 15 April 2010, L 95, p. 1; See also Corrigendum to Directive
2010/13/EU, OJ of 6 October 2010, L 263, p. 15. All references
has necessitated an adaption with regards to VOD
services. The examples referred to above reveal
2 98 2014
to provisions and recitals in this paper are made according to Audiovisual Media Service in the Light of Media Convergence”,
the numbering of the codified version of the Directive of 2010. ICRI Research Paper 17, 20 December 2013, p. 6.
3 See for instance the Minutes of the 35th Meeting of the Contact 16 Recital 22 AVMSD.
Committee established by the Audiovisual Media Services 17 Recital 21 AVMSD.
Directive, Doc CC AVMSD(2011)6, 23 November 2011.
18 Recital 23 AVMSD.
4 European Commission, “Green Paper, Preparing for a
19 The Court of Justice of the European Union also frequently
Fully Converged Audiovisual World: Growth, Creation and
turns to the recitals of the AVMSD to deduce the intention
Values”, COM(2013) 231 final, Brussels, 24 April 2013, available
of the Union legislature and clarify particular issues. On the
at http://eur-lex.europa.eu/LexUriServ/LexUriServ.
notion of surreptitious advertising; See Case C-52/10 Eleftheri
do?uri=COM:2013:0231:FIN:EN:PDF (accessed 18 July 2014).
tileorasi AE «ALTER CHANNEL» and Konstantinos Giannikos v
5 European Commission, Commission Decision of 3.2.2014 on Ypourgos Typou kai Meson Mazikis Enimerosis and Ethniko
Establishing the European Regulators Group for Audiovisual Symvoulio Radiotileorasis, 9 June 2011, E.C.R. 2011, I-04973,
Media Services, C(2014) 462 final, 3 February 2014. paras. 25, 26. On the interpretation of the right to short news
6 Ibid., Art. 2 (c). reports as stipulated in Art. 15 AVMSD; See Case C-283/11 Sky
7 In 1997, shortly after the first revision of the TwFD, the Österreich GmbH v Österreichischer Rundfunk, 22 January
Commission proposed a horizontal approach to all kinds of 2013, n.y.r., paras. 51, 62.
services to react to the phenomenon of convergence; See 20 See also Blázquez Cabrera, Francisco, “On-Demand Services:
European Commission, “Green Paper on the convergence of Made in the Likeness of TV?”, 2013, op.cit., pp. 20-22.
the telecommunications, media and information technology 21 De Bueger, Geneviève, “Supervising On-demand Audiovisual
sectors, and the implications for regulation, Towards an Media Services: Best practices and Methodology”, Comparative
information society approach”, COM(97)623, Brussels, 3 Background Document, 38th EPRA Meeting (EPRA, 2013), p. 6.
December 1997.
22 Polak, Juraj, “Tvsme considered on-demand audiovisual
8 Recital 24 of Directive 2010/13/EU of the European Parliament media service”, IRIS Merlin Newsletter 9, 2012, p. 38, available
and of the Council of 10 March 2010 on the coordination at http://merlin.obs.coe.int/iris/2012/9/article38.en.html
of certain provisions laid down by law, regulation or (accessed 26 June 2014).
administrative action in Member States concerning the
23 The Swedish Broadcasting Commission issued four individual
provision of audiovisual media services (hereinafter referred
decisions in October 2012; See Granskningsnämnden för radio
to as ‘AVMSD’) (Text with EEA relevance) OJ L 95, 15.4.2010,
och tvs beslut i Dnr 12/00777-00780 av den 29 oktober 2012 ,
p. 1–24.
available at http://www.radioochtv.se/CaseDecisions/206404.
9 See generally on the scope of application of the AVMSD: pdf, http://www.radioochtv.se/CaseDecisions/206405.
Cole, Mark, D., “The European Legal Framework for on- pdf, http://www.radioochtv.se/CaseDecisions/206406.pdf
Demand Services: What Directive for Which Services?”, in The (accessed 26 June 2014); See also Ullberg, Erik and Plogell,
Regulation of on-Demand Audiovisual Services: Chaos or Coherence?, Michael, “Radio and Televisions Act applies to newspapers’
ed. Nikoltchev, Susanne, IRIS Special (Strasbourg: European Web TV services”, IRIS Merlin Newsletter 1, 2013, p. 35, available
Audiovisual Observatory, 2011), pp. 35–45; Blázquez Cabrera, at http://merlin.obs.coe.int/iris/2013/1/article35.en.html
Francisco, “On-Demand Services: Made in the Likeness of TV?”, (accessed 26 June 2014).
in What Is an on-Demand Service?, ed. Nikoltchev, Susanne, IRIS
24 Machet, Emmanuelle, “New Media & Regulation: Towards a
Plus 4/2013 (Strasbourg: European Audiovisual Observatory,
Paradigm Shift? New Services and Scope: ‘What’s In, What’s
2013), pp. 7–27; Schulz, Wolfgang, “Medienkonvergenz Light
out Revisted’”, Comparative Background Document, 35th
- Zur Neuen Europäischen Richtlinie Über Audiovisuelle
EPRA Meeting (EPRA, 2012), pp. 14, 15, 17; Valcke, Peggy and
Mediendienste”, Europäische Zeitschrift für Wirtschaftsrecht,
Ausloos, Jef, “’What If Television Becomes Just an App?’ Re-
2008, pp. 107–111; Valcke, Peggy, Stevens, David, Werkers,
Conceptualising the Legal Notion of Audiovisual Media Service
Evi and Lievens, Eva., “Audiovisual Media Services in the EU,
in the Light of Media Convergence”, 2013, op.cit., para. 2.4.1,
Next Generation Approach or Old Wine in New Barrels?”,
p. 13.
Communications & Strategies 7, no. 3 (2008): pp. 103–118; Van
Eijk, Nico, “Scope of Application of the Modernised Directive”, 25 Since 31st December 2013, the BKS no longer acts as the appeal
in Regulating the New Media Landscape. A Directive for Audiovisual instance for decisions of the KommAustria (as foreseen in Sec.
Media Services without Frontiers, Schriftenreihe des Instituts für 36 (2) KommAustria Gesetzt (KommAustria Law). This function
Europäisches Medienrecht (EMR) 36 (Baden-Baden: Nomos, has been transferred to the Bundesverwaltungsgericht
2008), pp. 21–24. (Federal Administrative Court) by an amendment adopted in
May 2013 which modified Sec. 36 KommAustria Law.
10 The criterion of editorial responsibility defined in Art. 1 (1)
(c) AVMSD is similarly ambivalently worded. This uncertainty 26 Kommunikationsbehörde Austria, Bescheid, KOA 1.950/12-
may have repercussions on the territorial scope of application 048, Vienna, 9 October 2012, available at https://www.rtr.
of the Directive; See Craufurd Smith, Rachel, “Determining at/de/m/KOA195012048/KOA_1.950-12-048.pdf (accessed
Regulatory Competence for Audiovisual Media Services in the 26 June 2014). Bundeskommunikationssenat, Bescheid
European Union”, Journal of Media Law, 2011, 3, 2, p. 265-270. GZ. 611.191/0005-BKS/2012, Vienna, 13 December 2012,
available at http://www.bundeskanzleramt.at/DocView.
11 See also recitals 21-29 AVMSD which specify certain concepts
axd?CobId=49930 (accessed 26 June 2014); See also Matzneller,
and give indications on the scope of the Directive.
Peter, “Video section of newspaper website is notifiable on-
12 Art. 1 (1) (g) AVMSD. demand service”, IRIS Merlin Newsletter 3, 2013, p. 9, available
13 Art. 1 (1) (e) AVMSD. at http://merlin.obs.coe.int/iris/2013/3/article9.en.html
14 See generally on the graduated approach to regulation (accessed 25 June 2014).
Valcke, Peggy and Stevens, David, “Graduated Regulation of 27 Kommunikationsbehörde Austria, Bescheid, KOA 1.950/12-
‘Regulatable’ Content and the European Audiovisual Media 048, op.cit., para. 4.4.1, p. 10.
Services Directive, One Small Step for the Industry and One 28 Ibid.
Giant Leap for the Legislator?”, Telematics and Informatics 24
29 Ibid., para. 4.4.2, p. 11.
(2007): pp. 285–302.
30 Ibid.
15 Valcke, Peggy and Ausloos, Jef, “’What If Television Becomes
Just an App?’ Re-Conceptualising the Legal Notion of 31 Ibid.
2 99 2014
Jenny Metzdorf
32 Bundeskommunikationssenat, Bescheid GZ. 611.191/0005- uploads/files/Guidance_on_who_needs_to_notify_Ed_4.0_

BKS/2012, Vienna, 13 December 2012, para. 8, p. 4. Feb_2014.pdf (accessed 25 June 2014).
33 Ibid., paras. 9, 10, p. 5, 6. 44 Lowde, Shaun and Wells, Orlando, “ATVOD Determined to
34 Ibid., para. 10, p. 5. Do Better”, Computer and Telecommunications Law Review 18,
no. 4 (2012), pp. 102–104; Metzdorf, Jenny, “Regulierung
35 Ibid.
der Elektronischen Presse in Großbritannien? Ein
36 See pending case C-347/14 New Media Online. Anwendungsbeispiel zum Erwägungsgrund 28 der AVMD-RL“,
37 See the order of the Austrian Administrative Court of in IT Und Internet - Mit Recht Gestalten, ed. Taeger, Jürgen,
26.06.2014, available at https://www.ris.bka.gv.at/Dokument. Tagungsband Herbstakademie 2012 (Oldenburg: Oldenburger
wxe?Abfrage=Vwgh&Dokumentnummer=JWT_2013030012_2 Verlag für Wirtschaft, Informatik und Recht, 2012), pp. 497–
0140626X00. 516; Pimlott, Nick and Lewis, David, “Regulation of Video
38 In March 2010, the Office for Communications (Ofcom), as the on Demand Services Following the ‘Sun Video’ Appeal”,
UK’s independent regulator for the communications industry Entertainment Law Review 23, no. 3 (2012), pp. 65–68; Valcke,
designated ATVOD, previously a self-regulatory body, as Peggy and Ausloos, Jef, “’What If Television Becomes Just an
the competent co-regulator in charge of the regulation of App?’ Re-Conceptualising the Legal Notion of Audiovisual
certain aspects of the provision of on-demand audiovisual Media Service in the Light of Media Convergence”, 2013, op.cit.,
media services; See the original designation of March para. 2.4.2, p. 15.
2010: Ofcom, “Designation pursuant to Section 368B of the 45 Ofcom, Appeal by News Group Newspaper Limited against a
Communications Act 2003 of Functions to the Association notice of determination by ATVOD, 21 December 2011, paras.
for Television On-Demand in Relation to the Regulation of 90 a., b., p. 27.
On-Demand Programme Services”, 2010, http://atvod.co.uk/ 46 Ibid., paras. 90 c., e., f. p. 28.
uploads/files/designation1803101.pdf (accessed 25 June 2014);
47 Ibid., para. 90 d., p. 28.
See the amended designation of September 2012 Ofcom, “The
Amended Designation Dated 14 September 2012, Designation 48 Ibid., para. 90 g., pp. 28, 29.
pursuant to Section 368B of the Communications Act 2003 49 In general, Ofcom may (i) uphold ATVOD’s determination,
of Functions to the Association for Television On-Demand (ii) quash ATVOD’s determination and remit it back for
in Relation to the Regulation of on-Demand Programme reconsideration or (iii) substitute its decision for ATVOD’s
Services”, 2012, http://atvod.co.uk/uploads/files/amended- assessment. Proof of the importance of the case Sun Video
designation140912.pdf (accessed 25 June 2014). is reinforced by Ofcom’s substituting its decision for that of
39 For a concise overview of ATVOD’s regulatory tasks see ATVOD’s.
Mac Sithigh, Daithi, “Convergence, The Impact of Broadcast 50 Ofcom, Appeal by News Group Newspaper Limited against a
Regulation on Telecommunications”, in Telecommunications notice of determination by ATVOD, 21 December 2011, paras.
Law and Regulation, ed. Walden, Ian, fourth edition, (Oxford: 91, 96, 97, pp. 29, 30.
Oxford University Press), 2012, paras. 14.5 et seq., pp. 680–687. 51 Ibid., para. 186, para. 47.
40 In the UK, the AVMSD was primarily transposed by means 52 ATVOD, Summary of determination that the provider of “Vice
of the Audiovisual Media Services Regulation of 2009 which (Video)” is in breach of ATVOD’s Rules 1 & 4 and thereby has
inserted, among others, Sec. 368A CA 2003 in the CA 2003. contravened Section 368BA and Section 368D (3) (ZA) of the
For an overview of the legal acts adopted to transpose the Communications Act 2003, 14 August 2013.
AVMSD in the UK; See http://wwwen.uni.lu/recherche/fdef/
53 See on the increasingly “complex [national] regulatory
droit_des_medias/audiovisual_media_services_directive/
landscape[s]”, Craufurd Smith, Rachael, “Determining
national_execution_measures/united_kingdom (accessed
Regulatory Competence for Audiovisual Media Services in
25 June 2014).
the European Union”, 2011, op.cit., p. 284.
41 ATVOD Notice of Determination that the provider of the
54 The specific provisions of Art. 12 and 27 AVMSD are
service “Sun Video” has contravened Section 368BA of
supplemented by other rules protecting minors in view of
the Communications Act 2003, 11 February 2011; Notice
advertising and commercial communications. Above all,
of Determination that the provider of the service “News
Art. 9 (1) (g) AVMSD requires that commercial messages do
of the World Video” has contravened Section 368BA of
not harm minors and do not directly exhort minors to buy
the Communications Act 2003, 11 February 2011; Notice
the products and services advertised; See also Art. 10 (1) (b)
of Determination that the provider of the service “Sunday
AVMSD, Art. 11 (1) (3) (b) AVMSD, Art. 22 (a) AVMSD.
Times Video Library” has contravened Section 368BA of
the Communications Act 2003, 11 February 2011; Notice of 55 Recommendation 2006/952/EC of the European Parliament
Determination that the provider of the service “Guardian and of the Council of 20 December 2006 on the protection of
Video” has contravened Section 368BA of the Communications minors and human dignity and on the right of reply in relation
Act 2003, 28 June 2011; Notice of Determination that to the competitiveness of the European audiovisual and on-
the provider of the service “Financial Times Video” has line information services industry, OJ of 27 December 2006, L
contravened Section 368BA of the Communications Act 378, p. 72, paras. II 1, 2.
2003, 30.6.2011. ATVOD’s determinations are available at 56 Harrison, Jackie and Woods, Lorna, “European Broadcasting
http://www.atvod.co.uk/complaints/determinations/2011- Law and Policy”, Cambridge University Press, Cambridge 2007,
determinations (accessed 25 June 2014). pp. 235, 236; Lievens, Eva, “Protecting Children in the Digital
42 Ofcom, “Appeal by News Group Newspaper Limited against a Era, The Use of Alternative Regulatory Instruments”, Martinus
notice of determination by ATVOD that the provider of the Nijhoff Publishers, Leiden, 2010, p.44-47, 350.
service “Sun Video” has contravened Section 368BA of the 57 ATVOD, “Rules & Guidance, Statutory Rules and Non-
Communications Act 2003”, 21 December 2011; See http:// Binding Guidance for Providers of On-Demand Programme
www.atvod.co.uk/uploads/files/Ofcom_Decision_-_SUN_ Services (ODPS)”, Edition 2.1, 26 February 2014, http://atvod.
VIDEO_211211.pdf (accessed 25 June 2014). co.uk/uploads/files/ATVOD_Rules_and_Guidance_Ed_2.1_
43 The Ofcom guidance was subsequently “codified” in ATVOD’s February_2014.pdf (accessed 25 June 2014).
guidance on “Who needs to notify” as updated in February 58 Ofcom, “Sexually Explicit Material and Video On Demand
2014, paras. 3.10-3.13, pp. 9, 10; See http://www.atvod.co.uk/ Services, A Report to DCMS by Ofcom”, 4 August 2011,
http://stakeholders.ofcom.org.uk/binaries/internet/
2 100 2014
explicit-material-vod.pdf (accessed 25 June 2014); See also 70 Ofcom, “Sanction: Decision by Ofcom Imposed on Playboy
Government’s response in form of a letter from Ed Vaizey, TV/Benelux Limited for the provision of the on-demand
Department for Culture, Media and Sport to Ed Richards of 3 programme service “Demand Adult” from 31 May 2012 to 24
August 2011, available at http://webarchive.nationalarchives. July 2012”, 83(12), 16 January 2013; Ofcom, “Sanction: Decision
gov.uk/20121204113822/http://www.culture.gov.uk/images/ by Ofcom Imposed on Playboy TV/Benelux Limited for the
publications/EVletter-to-ed-richards-3aug2011pdf.pdf provision of the on-demand programme service “Playboy
(accessed 25 June 2014). tv.co.uk” from 31 May 2012 to 24 July 2012”, 84(12), 16 January
59 In several policy documents, ATVOD outlined its 2013. For all determinations of ATVOD and subsequent appeals
precautionary approach: ATVOD, “House of Lords Select to Ofcom discussed below; See ATVOD’s website http://www.
Committee on Communications, Media Convergence and atvod.co.uk/complaints/determinations (accessed 26 June
Its Public Policy Impact, The Submissions of the Authority 2014).
for Television On Demand”, 20 September 2012, p. 6, http:// 71 ATVOD, “Determination that the provider of the on demand
www.atvod.co.uk/uploads/files/Media_Convergence_call_ programme service “playboytv.co.uk” was in breach of rule
for_evidence_ATVOD_submission_FINAL.pdf (accessed 26 11”, 2 July 2012; ATVOD, “Determination that the provider of
June 2014); ATVOD, “The Culture, Media & Sports Inquiry into the on demand programme service “Demand Adult” was in
Online Safety, Submission from the Authority for Television breach of rule 11”, 2 July 2012.
On Demand”, 3 October, 2013, paras. 2.2, 2.3, http://www. 72 ATVOD, “Determination that the provider of the on demand
publications.parliament.uk/pa/cm201314/cmselect/ programme service “playboytv.co.uk” was in breach of rule
cmcumeds/729/729vw64.htm (accessed 26 June 2014); 11”, 2 July 2012, pp. 6, 7; ATVOD, “Determination that the
ATVOD, “For Adults Only? Underage Access to Online Porn”, provider of the on demand programme service “Demand
28 March 2014, pp. 7, 9. Adult” was in breach of rule 11”, 2 July 2012, p. 6.
60 This threshold is without prejudice to the material which is 73 The exact time period when the service provider contravened
considered illegal under Sec. 1 of the Obscene Publications Rule 11 and thereby Sec. 368E (2) CA 2003 was from 31 May to
Act (OPA) of 1959 & 1964 and is thus prohibited under Sec. 24 July 2012 as indicated by the sanction decision of Ofcom.
2 OPA unless justified by the “defense of public good” laid
74 ATVOD, “Determination that the provider of the on demand
down in Sec. 4 OPA.
programme service “playboytv.co.uk” was in breach of rule
61 BBFC, “BBFC Guidelines, Age Ratings You Trust”, 2014, 11”, 2 July 2012, pp. 6; ATVOD, “Determination that the
http://bbfc.co.uk/sites/default/files/attachments/BBFC%20 provider of the on demand programme service “Demand
Classification%20Guidelines%202014_0.pdf (accessed 26 June Adult” was in breach of rule 11”, 2 July 2012, p. 7.
2014).
75 See ATVOD’s determinations of September 2012: Notice of
62 ATVOD, “Rules & Guidance, Statutory Rules and Non-Binding Determination that Playboy TV UK/Benelux Limited is the
Guidance for Providers of On-Demand Programme Services” provider of the service “Demand Adult”, 17 September 2012;
(ODPS)”, Edition 2.1, op.cit., Rule 11, pp. 12, 13. Notice of Determination that Playboy TV UK/Benelux Limited
63 ATVOD, “For Adults Only? Underage Access to Online Porn”, is the provider of the service “Playboytv.co.uk”, 17 September
p. 9; See also ATVOD, “UKCCIS Parental Controls Consultation, 2012.
The Submission of the Authority for Television On Demand”, 76 Ofcom, “Ofcom Decision, Appeal by Playboy TV UK/Benelux
18 September 2012, pp. 6, 7, http://www.atvod.co.uk/uploads/ Limited against a notice of determination by ATVOD that
files/Parental_controls_consultation_-_ATVOD_response_ it was the provider of the service “Demand Adult” as at 14
FINAL.pdf (accessed 26 June 2014). September 2012”, 23 September 2013, para. 34, p. 8; Ofcom,
64 ATVOD, “Rules & Guidance, Statutory Rules and Non-Binding “Ofcom Decision, Appeal by Playboy TV UK/Benelux Limited
Guidance for Providers of On-Demand Programme Services” against a notice of determination by ATVOD that it was the
(ODPS)”, Edition 2.1, op.cit., Rule 11, p. 13. provider of the service “Playboy TV” as at 14 September 2012”,
65 In similar vein, the German Federal Supreme Court 23 September 2013, para. 33, p. 8.
(Bundesgerichtshof) ruled in September 2007 that an age 77 ATVOD, The Culture, Media & Sports Inquiry into Online
verification system based on the number included in the Safety, para. 1.8.
identity card (Personalausweis) or passport in addition to the 78 The research commissioned by ATVOD found that “the eight
indication of the postal code of the city where the document most visited adult sites were all free tube sites, as were 15 of
was issued did not constitute an “effective barrier” in order the top 16.“, ATVOD, For Adults Only? Underage Access to
to guarantee that underage persons could not access the Online Porn, p. 19.
content; See BGH vom 18.9.2007 – I ZR 102/05 – ueber18.de –
79 ATVOD, For Adults Only? Underage Access to Online Porn,
OLG Düsseldorf, Zeitschrift für Urheber- und Medienrecht 2008,
p. 21.
pp. 511-516.
80 ATVOD, For Adults Only? Underage Access to Online Porn,
66 ATVOD, “Rules & Guidance, Statutory Rules and Non-Binding
p. 24.
Guidance for Providers of On-Demand Programme Services”
(ODPS)”, Edition 2.1, op.cit., Rule 11, p. 13. 81 ATVOD, For Adults Only? Underage Access to Online Porn,
pp. 13-17. The surveys conducted by Nielsen Netview by
67 With regards to the protection of children from inappropriate
order of ATVOD are based on an assessment of consumption
content, several UK regulators across different media launched
using a computer or laptop and exclude the use of tablets,
the initiative ParentPort in 2011. It aims at facilitating the
smartphones and other devices. ATVOD therefore relies
detection of inappropriate content and education of parents;
on research conducted by Ofcom which shows that minors
See http://www.parentport.org.uk/ for more information
of particular age groups increasingly use mobile phones
(accessed 26 June 2014).
or tablets to go online in order to conclude that its figures
68 ATVOD, For Adults Only? Underage Access to Online Porn, p. 9. are underestimated; See also Ofcom, “Children and Parents:
69 See also Ofcom, “Procedures for the Consideration of Statutory Media Use and Attitudes Report”, 3 October 2013, p. 44,
Sanctions Arising in the Context of On-Demand Programme http://stakeholders.ofcom.org.uk/binaries/research/media-
Services”, 1 October 2013, http://stakeholders.ofcom.org. literacy/october-2013/research07Oct2013.pdf (accessed 26
uk/binaries/broadcast/tv-ops/vod/sanctions-procedures. June 2014).
pdf (accessed 26 June 2014).
2 101 2014
Jenny Metzdorf
82 Siry, Lawrence, “Knowing It When It Is Seen, The Polemic of industry needed some time to adapt and conform to the new
the Regulation of Sexualized Speech in the United States and requirements; See European Commission, “Report from the
Europe”, soon to be published, p. 324. Commission to the European Parliament, the Council, the
83 For an overview of NRAs activities concerning the protection European Economic and Social Committee and the Committee
of minors see Machet, Emmanuelle, “The Protection of Minors of the Regions, First Report on the Application of Articles
in a Connected Environment”, Comparative Background 13, 16 and 17 of Directive 2010/13/EU for the period 2009-
Document, 37th EPRA Meeting, 2013, pp. 7–9. 2010, Promotion of European works in EU scheduled and on-
demand audiovisual media services”, COM(2012) 522 final,
84 In Germany, for instance, the reform of the relevant laws
Brussels, 24 September 2012, para. 1.1.1, p. 3; para. 1.1.3, p. 5;
for the protection of minors failed in December 2010 when
para. 3, p. 11; See also the European Parliament’s resolution of
the Parliament of one of the German Länder rejected the
11 September 2012 on the online distribution of audiovisual
14th amendment to the Interstate Treaty for the Protection
works in the European Union (P7_TA(2012)0324) which calls
of Minors. So far, the reform has been on hold but has
on Member States to effectively implement Art. 13 AVMSD,
received new impetus by an online consultation which is
para. 34. On the application of Art. 16 AVMSD see para. 2.2, p. 9.
currently taking place on the future of the Interstate Treaty
and the system of regulated self-regulation concerning the 92 European Commission, “Report from the Commission to the
classification of content and youth protection programmes as European Parliament, the Council, the European Economic
well as parental control systems. The consultation is organized and Social Committee and the Committee of the Regions, First
by the Landesmedienanstalten (LMA, media authorities of the Report on the Application of Articles 13, 16 and 17 of Directive
German Länder) under https://www.jugendmedienschutz. 2010/13/EU for the period 2009-2010, Promotion of European
sachsen.de/sachsen/de/home (accessed 26 June 2014); See works in EU scheduled and on-demand audiovisual media
also the Discussion Paper of the LMA available at https:// services”, COM(2012) 522 final, Brussels, 24 September 2012,
www.jugendmedienschutz.sachsen.de/ecm-politik/sachsen/ para. 1.1.1, p. 3.
de/home/file/fileId/952 (accessed 26 June 2014). 93 Entraygues, Alexandre, “French Solutions”, in Video on Demand
85 Art. 4 and 5 TWFD of 1989. and the Promotion of European Works, ed. Nikoltchev, Susanne,
IRIS Special (Strasbourg: European Audiovisual Observatory,
86 Art. 1 (1) (n) AVMSD; See on the lack of a quality criterion in
2013), p. 25.
the definition of European works Harrison, Jackie and Woods,
Lorna, “European Broadcasting Law and Policy”, 2007, op.cit., 94 Interestingly, a French Decree of December 2010 provides for
p. 254-259. a circumvention rule in case of a VOD provider established
outside of France but directing its service wholly or principally
87 In its Weber report of 2005, the European Parliament
to the French public. The French regulator could, on the basis
recommended the precision of the definition of “European
of Art. 4 of this Decree take action against service providers
works” and an introduction of a definition of “independent
allegedly failing to comply with the rules on promotion of
producer”. It further advocated the development of “European
European works. “Décret n° 2010-1593 du 17 décembre 2010
co-productions and joint marketing strategies” which implies
relatif aux services de télévision et de médias audiovisuels à la
its dissatisfaction with the construction of the definitions in
demande relevant de la compétence d’un autre Etat membre
the TwFD; See European Parliament, “on the application of
de l’Union européenne ou partie à l’accord sur l’Espace
Articles 4 and 5 of Directive 89/552/EEC (the “TV without
économique européen ou à la convention européenne sur la
Frontiers” Directive), as amended by Directive 97/36/EC,
télévision transfrontière du 5 mai 1989”, JORF n°0294 du 19
for the period 2001-2002”, (2004/2236(INI)), 21 June 2005,
décembre 2010, p. 22368, texte n° 29, NOR: MCCE1019062D;
Explanatory Statement, para. 1, p. 12.
See also Craufurd Smith, Rachael, “Determining Regulatory
88 Burri-Nenova, Mira, “The New Audiovisual Media Services Competence for Audiovisual Media Services in the European
Directive: Television without Frontieris, Television without Union”, 2011, op.cit., p. 281.
Cultural Diversity,” Common Market Law Review 14 (2007);
95 The analysis below focuses on the aspect of promotion
1707; Craufurd Smith, Rachel, “From Heritage Conservation
and thus omits any assessment of financial contributions
to European Identiy: Article 151 EC and the Multi-Faceted
prescribed by the respective national laws.
Nature of Community Cultural Policy,” European Law Review
32, no. 1 (2007): 48–69; Katsirea, Irini, “Why the European 96 Décret n° 2010-1379 du 12 novembre 2010 relatif aux services
Broadcasting Quota Should Be Abolished”, European Law Review de médias audiovisuels à la demande, JORF n°0264 du 14
28, no. 2 (2003): 190–209; McGonagle, Tarlach “The Quota novembre 2010, p. 20315, texte n° 58, NOR: MCCE1019142D.
Quandary: An Assessment of Articles 4-6 of the Television Hereinafter ‘French VOD Decree of 2010’.
without Frontiers Directive,” in The European Union and the 97 The obligation is triggered when the catalogue of a service
Culture Industries, Regulation and the Public Interest, ed. David provider comprises 20 audiovisual works of more (confer Art.
Ward, United Kingdom, Ashgate Publishing, 2008, 187–212. 11 French VOD Decree of 2010) and gradual compliance with
89 Castendyk, Oliver, “Article 4 TWFD (Promotion of European the quotas is permissible pursuant to Art. 12 of the French
Works)”, in European Media Law, ed. Castendyk, Oliver, VOD Decree of 2010.
Dommering, Egbert and Scheuer, Alexander (The Netherlands: 98 Conseil supérieur de l’audiovisuel, “Rapport au Gouvernement
Kluwer Law International, 2008), para. 63, p. 452. sur l’application du décret n° 2010-1379 du 12 novembre
90 Burri-Nenova, Mira, “Cultural Diversity and the EC Audiovisual 2010 relatif aux services de médias audiovisuels à la
Media Services Directive: Beyond the Handsome Rhetoric”, demande (SMAD)”, November 2013, available at http://csa.
NCCR Trade Regulation Working Paper No. 2009/09, 30 fr/Services-interactifs/Services-de-medias-audiovisuels-
March 2009, pp. 12–17, available at SSRN: http://ssrn.com/ a-la-demande-SMAD/Rapport-au-Gouvernement-sur-l-
abstract=1370439 or http://dx.doi.org/10.2139/ssrn.1370439. application-du-decret-n-2010-1379-du-12-novembre-2010-
relatif-aux-services-de-medias-audiovisuels-a-la-demande-
91 This may partly be explained by the fact that the Commission
SMAD (accessed 26 June 2014). Hereinafter ‘CSA Report of
examined the application of Art. 13 AVMSD in the years 2009
November 2013’.
and 2010, a period immediately following the deadline for
transposition. In fact, transposition of the Directive was 99 The French CSA noted in its report that the calculation should
delayed in several Member States (such as Luxembourg, take into account the number of days when the title was
Portugal, Poland or Slovenia). In addition, measures to featured in the catalogue on an annual basis; See CSA Report
promote European works in VOD services were introduced of November 2013, para. 3. b), p. 34; para. 6. a), p. 44.
for the first time in many Member States so that the 100 Ibid, para. 6. b), p. 45.
2 102 2014
101 European Commission, “Commission Staff Working Document, dans les services de vidéo à la demande – article 46 du
Promotion of European Works in EU scheduled and on- décret SMA”, 28 June 2012, available at http://www.csa.be/
demand audiovisual media services, Part I on the application system/documents_files/1779/original/CAC_20120628_avis_
of Article 13 of Directive 2010/13/EU for the period 2009-2010, evaluation_recommandation_VOD.pdf?1341305335 (accessed
Accompanying the document First Report on the Application 18 July 2014).
of Articles 13, 16 and 17 of Directive 2010/13/EU for the period 118 Collège d’autorisation et de contrôle, “Avis n° 11/2012,
2009-2010 (COM(2012) 522 final)”, Brussels, 24 September Evaluation du dispositif de mise en valeur des oeuvres
2012, SWD(2012) 269 final, para. 1.3. européennes et de la Fédération WallonieBruxelles dans les
102 CSA Report of November 2013, para. 6. b), p. 46. services de vidéo à la demande – article 46 du décret SMA”,
103 Ibid. 28 June 2012, para. 4.5, p. 11.
104 Ibid, para. 6. c), p. 47. 119 Ibid., para. 6.1, p. 19.
105 Ibid. 120 Ibid., para. 7, p. 23.
106 On the organization, tasks and sanctioning powers of the 121 Ibid., paras. 6.2 and 6.3, pp. 20 and 21; para. 7, p. 23.
Belgian CSA see Valcke, Peggy and Lievens, Eva, Media Law in 122 European Commission, “Report from the Commission to the
Belgium (The Netherlands: Kluwer Law International, 2011), European Parliament, the Council, the European Economic
paras. 278 et seq., pp. 144–149. and Social Committee and the Committee of the Regions, First
107 Parlement de la Communauté Française (Belgique), “Projet Report on the Application of Articles 13, 16 and 17 of Directive
de décret modifiant le décret du 27 février 2003 sur la 2010/13/EU for the period 2009-2010, Promotion of European
radiodiffusion et le décret du 9 janvier 2003 relatif à la works in EU scheduled and on-demand audiovisual media
transparence, à l’autonomie et au contrôle des organismes services”, COM(2012) 522 final, Brussels, 24 September 2012,
publics, des sociétés de bâtiments scolaires et des sociétés para. 1.1. b), p. 6.
de gestion patrimoniale qui dépendent de la communauté 123 In Belgium and France, for instance, providers of VOD services
française”, Projet de décret 634 (2008-2009), N°1, 22 are obliged to submit a report annually in line with Art. 40
December 2008, Art. 63, pp. 23, 24, available at http://www. Belgian Decree AVMS and Art. 21 French VOD Decree 2010
pfwb.be/le-travail-du-parlement/doc-et-pub/documents- respectively. To verify the data supplied by service providers,
parlementaires-et-decrets/documents/001274595 (accessed the French CSA carries out random spot checks while
26 June 2014). Hereinafter ‘Draft AVMS Decree’. the Belgian CSA for the purpose of its final report of 2012
108 Draft AVMS Decree, Art. 63, p. 24. appeared to compile data within a specific reference period;
See European Commission, “Report from the Commission to
109 Collège d’autorisation et de contrôle , “Recommandation
the European Parliament, the Council, the European Economic
relative à la mise en valeur des oeuvres européennes et de la
and Social Committee and the Committee of the Regions,
Communauté française de Belgique dans les services de vidéo
First Report on the Application of Articles 13, 16 and 17 of
à la demande”, 24 June 2010, available at http://www.csa.be/
Directive 2010/13/EU for the period 2009-2010, Promotion of
documents/1313 (accessed 26 June 2014). Hereinafter ‘CSA
European works in EU scheduled and on-demand audiovisual
Recommendation of 2010’.
media services”, COM(2012) 522 final, Brussels, 24 September
110 CSA Recommendation of 2010, para. 4, p. 8. The 2012, para. 1.1. b), p. 6; See also Entraygues, Alexandre,
Recommendation even referred to “ghettoïsation” (or “French Solutions”, in Video on Demand and the Promotion
marginalization) and user prejudices regarding works of of European Works, ed. Nikoltchev, Susanne, IRIS Special
European or national origin. (Strasbourg: European Audiovisual Observatory, 2013), p.
111 Ibid. 29; Collège d’autorisation et de contrôle, “Avis n° 11/2012,
112 Ibid. Evaluation du dispositif de mise en valeur des oeuvres
européennes et de la Fédération WallonieBruxelles dans les
113 Ibid. services de vidéo à la demande – article 46 du décret SMA”,
114 Interestingly, the Belgian CSA outlined “other parameters” 28 June 2012, para. 5.1, p. 12.
which could impact on the prominence of European and 124 Wet van 29 december 2008 tot vastelling van een nieuwe
Belgian works. In this context, it called on providers to Mediawet.
carefully consider the date they would enter the relevant
programme in their catalogues with a view to avoiding direct 125 Commissariaat voor de Media, “Rapportageformulier/
competition with American blockbusters. It acknowledged Vragenlijst ten behoeve van rapportage Europese quota cmoa”,
that such dates habitually depended on the windows within available at http://www.cvdm.nl/praktisch/commerciele-
which the distribution rights of a film could be exploited. Still, mediadienst-op-aanvraag-aanmelden/ (accessed 26 June
the duration of the inclusion of the work in the catalogue as 2014). Hereinafter ‘CvdM Reporting form’.
well as the simultaneous offer of competing works (whether 126 CvdM Reporting form, paras. I – N dedicated to the share of
European/Belgian or not) were factors likely to influence European works in the catalogue and paras. O-T concerning
the visibility of European and Belgian productions; See CSA financial contributions.
Recommendation of 2010, para. 6, pp. 9, 10. 127 The term “findability” is distilled from the European
115 Furnémont, Jean-Francois, “New Issues and Challenges for Parliament’s resolution of 4 July 2013 on connected TV,
Audiovisual Policy-Makers, Films Institutions and Audiovisual paras. L, M and 1. The expression adequately captures the
Regulators: The Example of the French Community of vast amount of content available on connected TV devices
Belgium”, in Video on Demand and the Promotion of European and raises the question of prioritization of content (how and
Works, ed. Nikoltchev, Susanne, IRIS Special (Strasbourg: by whom?) and the creation of user-friendly and transparent
European Audiovisual Observatory, 2013), p. 39. tools whereby content is structured and can thus be found
116 Ibid. more easily by users.
117 The opinions of the Belgian CSA evaluating the measures 128 CvdM Reporting form, paras. U-X.
taken to promote European and Belgian works are available 129 Betzel, Marcel, “The Dutch Approach”, in Video on Demand
at http://csa.be/documents/1779 (accessed 26 June 2014); and the Promotion of European Works, ed. Nikoltchev, Susanne,
See in particular Collège d’autorisation et de contrôle, “Avis IRIS Special (Strasbourg: European Audiovisual Observatory,
n° 11/2012, Evaluation du dispositif de mise en valeur des 2013), p. 35.
oeuvres européennes et de la Fédération WallonieBruxelles 130 Ibid.
2 103 2014
Jenny Metzdorf
131 The Commission’s Green Paper of 2013 highlights that

consumption of audiovisual content is increasingly moving
online. European Commission, “Green Paper, Preparing for
a Fully Converged Audiovisual World: Growth, Creation and
Values”, COM(2013) 231 final, Brussels, 24 April 2013, op.cit.,
para. 2, p. 4.
132 See Hörnle, Julia, “The Jurisdictional Challenge of the
Internet”, in Law and the Internet, eds. Edwards, Lilian and
Waelde, Charlotte, third edition (Oxford and Portland, Oregon:
Hart Publishing, 2009), pp. 121–58; Schmitz, Sandra and Siry,
Lawrence, „Internationale Gerichtliche Zuständigkeit Bei
Persönlichkeitsverletzungen Im Internet“, in Die Welt Im
Netz - Folgen Für Wirtschaft Und Gesellschaft, Tagunsgband Der
Herbstakademie 2011 (Oldenburg: Oldenburger Verlag für
Wirtschaft, Informatik und Recht, 2011), pp. 83–100.
2 104 2014
A Qualitative Study on the Adoption of CAA and CLA
A Qualitative Study on the Adoption

of Copyright Assignment Agreements
(CAA) and Copyright License Agreements
(CLA) within Selected FOSS Projects
by Sylvia F. Jakob, LL.B.(Hons.), Dipl. L.P., LL.M., Solicitor (n.p), Research Assistant, Institute for Legal Informatics,
Hannover
Abstract: Open source software projects are projects. The current paper provides an insight into
multi-collaborative works incorporating the contri- the ethos of different projects and their reason for
butions of numerous developers who, in spite of pub- adopting or rejecting particular contributor agree-
lishing their code under a public license such as GPL, ments. It further examines the exact set-up of the
Apache or BSD, retain the copyright in their contri- contributor agreements used and concludes that
butions. Having multiple copyright-owners can make smart drafting can blur the difference between CAAs
the steering of a project difficult, if not impossible, as and CLAs to a considerable extent, manoeuvring
there is no ultimate authority able to take decisions them into a legal grey area. To avoid costly litigation
relating to the maintenance and use of the project. to test the legal enforceability of individual clauses,
This predicament can be remedied by centring the this paper proposes the establishment of an inter-
dispersed copyrights in a single authority via con- national committee comprised of developers, product
tributor agreements. Whether to introduce contribu- managers and lawyers interested in finding a com-
tor agreements, and if so in which form, is a pressing mon terminology that may serve as a foundation for
question for many emerging, but also for established every contributor agreement.
Keywords: Free and Open Source Software (FOSS), Public Licenses, Outbound Licenses, Inbound Licenses, Con-
tributor Agreements, Contributor Assignment Agreements (CAA), Contributor License Agreements
(CLA)
© 2014 Sylvia F. Jakob
This article may also be used under the Creative Commons Attribution-Share Alike 3.0 Unported License, available at http://
creativecommons.org/licenses/by-sa/3.0/.
Recommended citation: Sylvia F. Jakob, A Qualitative Study on the Adoption of Copyright Assignment Agreements (CAA) and
Copyright License Agreements (CLA) within Selected FOSS Projects, 5 (2014) JIPITEC 105, para. 1.
2 105 2014
Sylvia F. Jakob
A. Introduction B. Qualitative Interviews

and Research
1 Open source software projects are multi-
collaborative works incorporating the contributions
of numerous developers who, in spite of publishing
their code under a public license such as GPL, Apache
I. Questions and Methodology
or BSD, retain the copyright in their contributions.
The public license, also referred to as an “outbound 6 To accomplish this aim, a questionnaire was
license”, regulates the usage rights granted by the created and used as common thread during a series
developer to the outside world. It ensures that the of interviews. Sixteen stakeholders7 agreed to
code can be used by virtually everyone having an be interviewed, including (legal) representatives
interest in doing so as long as the user follows the of projects, independent consultants, product
terms of the outbound license. managers, independent and employed FOSS
developers and one professor of computer science
2 However, having multiple copyright-owners can with a special focus on open source software,8 thus
make the steering of a project difficult, if not constituting a representative sample of interested
impossible, as there is no ultimate authority able to stakeholders. In addition, further research was
take decisions relating to the maintenance and use undertaken in the fields of law, organizational
of the project. This predicament can be remedied science and business informatics to back up the
by centring the dispersed copyrights in a single results obtained.
authority via contributor agreements, also referred
to as “inbound licenses” because they regulate the 7 As expected, a clear distinction could be made
relationship of the developer with a particular between projects that actively managed contributions
organizational entity. and those that did not. The following paragraphs
shall provide an overview of selected FOSS projects,
3 In recent years many FOSS projects have incorporated examining their makeup and reasons for using or
as non-profit organizations1 and many corporations refusing particular contributor agreements.
have begun to release protected code under open
source licenses to harness the wisdom of the
crowd.2 Many of these organizations require their C. Projects That Do Not Actively
contributors to sign a contributor agreement, either Manage Contributions
in the form of a Copyright Assignment Agreement
(CAA), whereby the developer transfers and abandons
his intellectual property rights in the contribution
for the benefit of a project’s administration, or a
I. The Linux Kernel
Contributor License Agreement (CLA),3 whereby
the developer is only required to grant usage rights. 8 The Linux Kernel is only a small part of the software
Some projects, in turn, continue to follow the notion on a full Linux system, not including systems
of “outbound” equals “inbound”,4 arguing that a software, libraries or applications, but as the core,
public license sufficed and no intellectual property it is responsible for managing the hardware, running
management within the project was necessary.5 user programs and maintaining the overall security
and integrity of the system.9
4 To date no comprehensive, legal study6 has been
conducted asking which kind of projects use CAAs, 9 The Kernel was originally written by Linus Torvalds,
which CLAs, and which forego the management who published it as a pet project on a usenet posting
of intellectual property of contributions entirely. in August 1991.10 At first it was released under its
The existence of a pattern would be particularly own licence, which had a restriction on commercial
interesting for new projects, as many find it difficult activity; however, Torvalds soon changed the license
to determine into which end of the spectrum they to the GPL 2, encouraging thousands of developers to
fall, whether to use a contributor agreement, and if actively contribute.11 Today the Kernel is celebrated
so, how to draft it, or where appropriate, to refrain as the most important open source project in history,
from using a contributor agreement from the outset. not only running on desktops, smartphones, routers,
web servers, supercomputers, TVs, refrigerators,
5 It is thus the objective of this study to search for tablets and even the stock market (London, NY,
common denominators and gain valuable insights Johannesburg, etc.), but in many areas being the
for the benefit of different stakeholders, first and undisputed leader.12
foremost developers, product managers and lawyers.
10 Legally, the Kernel may be regarded as a “composite
work”13 comprised of Linus Torvalds’ original code
with extensions and modifications contributed by
other developers.14 Torvalds thus holds the copyright
2 106 2014
of the composite work.15 As such, he can “distribute migrate the project from the Artistic License v. 1 to
and reproduce”16 the contributions as part of the v. 2, which was a legally overseen re-draft of version
composite work. However, he cannot modify or re- 1, and to convince every contributor to sign a CLA.
license the code under any license that goes against However, instead of redesigning Perl 5, Perl 6 turned
the rules of the individual works, nor can he defend into a completely new language with a completely
possible violations in a court of law. To date every new developer community. This was largely due to
contributor is asked to provide his patches under the fact that most Perl 5 developers, estimated at
the GPL v. 2, which is incompatible with many around 500,000, refused to agree to a license change
other outbound licenses including the GPL v. 3. and boycotted the signing of CLAs.22 As a result of the
Consequently, Torvalds or any other successor is Perl language split, Perl 5 continues to be developed ,
not able to re-license – i.e. change – the outbound now having arrived at v. 5.18, and Perl 6 has multiple
license or defend possible violations in a court of law implementation projects such as Rakudo Perl, which
unless he obtains the permission of all contributors is based on Parrot and NQP (Not Quite Perl).23 In
in the form of contributor agreements. order to be able to contribute to Perl 6, developers
are required to sign a CLA, whereas developers of
11 But Torvalds vehemently refuses to adopt Perl 5 continue to follow the inbound=outbound
contributor agreements approach.
not because they allow organizations to re-license, but because

the copyright assignment paperwork ends up basically killing III. LLVM
the community. Basically, with a CLA, you don’t get the kind
of “long tail” that the kernel has of random drive-by patches.
And since that’s how lots of people try the waters, any CLA at 17 LLVM (formerly Low Level Virtual Machine) is a
all – changing the license or not – is fundamentally broken.17 compiler infrastructure written in C++ designed for
compile-time, link-time, run-time and “idle-time”
12 Linus emphasizes that the Kernel benefits from many optimization of programs written in arbitrary
“drive-by-developers” who would be deterred if programming languages. Languages with compilers
they were requested to sign contributor agreements that use LLVM include ActionScript, Ada, D, Fortran,
before being able to submit a patch. It would further OpenGL Shading Language, Haskell, Java bytecode,
mean a disproportionate administrative outlay for Julia, Objective-C, Python, Ruby, Rust, Scala and C#.24
Linus lieutenants. The “trusted lieutenants”18 are
roughly a dozen hackers responsible for maintaining 18 The LLVM project started in 2000 at the University
a part of the Linux Kernel. Many developers send of Illinois at Urbana–Champaign as a research
their patches directly to them instead of Linus. infrastructure to investigate dynamic compilation
techniques for static and dynamic programming
languages. It was released under the University of
II. Perl Illinois/NCSA Open Source License, a non-copyleft
license.25
13 The general-purpose Unix scripting language Perl is 19 The LLVM project managers decided against
in a similar situation. introducing contributor agreements and reasoned
as follows:
14 Perl was originally developed by Larry Wall in 1987
and published under the Artistic License v. 1,19 an The LLVM project does not require copyright assignments,
open source license, likewise developed by Larry which means that the copyright for the code in the project is
Wall. Thousands of programmers used and improved held by its respective contributors who have each agreed to
Perl, turning it into one of the most widely known release their contributed code under the terms of the LLVM
open source programming languages.20 License.
15 The development process is overseen by Larry Wall An implication of this is that the LLVM license is unlikely to
and a small group of main developers called the ever change: changing it would require tracking down all the
contributors to LLVM and getting them to agree that a license
“pumpkings”. They make the day-to-day decisions
change is acceptable for their contribution. Since there are
on where Perl should go and make releases. Below no plans to change the license, this is not a cause for concern.
that are the people with commit access to the
repositories, who filter and apply patches and As a contributor to the project, this means that you (or your
changes. Beyond that are the general community company) retain ownership of the code you contribute, that
and contributors who submit patches and participate it cannot be used in a way that contradicts the license (which
in the mailing lists. 21 is a liberal BSD-style license), and that the license for your
contributions won’t change without your approval in the
16 In the year 2000, Larry Wall and Alison Randall, future.26
decided to redesign Perl v. 5 and adapt it to the
challenges of the 21st century. They attempted to
2 107 2014
Sylvia F. Jakob
IV. Outlook other hand, use a permissive license, e.g. Apache or

BSD, all parties can appropriate the code and include
20 The outbound = inbound approach is the very nucleus it into commercial products without having to share
of open source programming. It was Stallmann’s their changes with the public. 35
vision to free software development from
appropriation through copyrights and patents.27 To 26 Contributor agreements only become relevant when
achieve this aim he developed a copyright license, it comes to the management of the project, e.g.
the General Public License (GPL),which drew on the the ability to re-license the code under a different
existing copyright regime to ensure exclusive rights public license, to sublicense the code under a
for the public at large and not just for the original certain trademark or the ability to enforce possible
copyright holder. The only condition he imposed violations in a court of law.
was that any derivative works and combinations of
27 In theory, a project could also decide to introduce
GPL licensed code should also be published under the
contributor agreements at a later stage. KDE, for
GPL. For that reason the GPL has often been referred
instance, introduced its Fiduciary License Agreement
to as “viral”.28
(FLA) nearly ten years after its first release.36 This is
21 This virality helped volunteer communities come unproblematic where the number of committers is
together on an informal basis to exchange ideas and manageable. But for very big projects, it requires
build upon each other’s work,29 resting assured that sure instincts to know when the crossroads is
this collective work and the license behind it would reached after which the perceived benefit of having
be enforced by the courts.30 contributor agreements is outweighed by the
burden of seeking out untrackable developers. The
22 The above projects were initiated during a latter, however, should apply to only a very small
Zeitgeist of free procreation of code – formalities percentage of projects, given that less than 10% of
such as contributor agreements were unknown. all projects have more than 1,000 active committers
Companies were still sceptical, but allowed a couple at any given time. Most projects have only one to
of developers to write code in their working time if three committers.37
that saved money or raised efficiency. As a result,
there is now an enormous user and developer base. 28 It may thus be concluded that certain projects, in this
paper exemplified as Linux, Perl or LLVM, made a
23 The management of these projects knows that they conscientious choice of not introducing contributor
would be able to manage the projects much more agreements in order to save on administrative
efficiently by holding, or having particular usage resources and open the door for a flourishing
rights, of the individual copyrights. However, this community of developers. Due to their tremendous
dilemma is accepted as given, since the administrative size, however, a change in the managerial approach
burden of introducing contributor agreements would is no longer conceivable. Smaller projects, by
hinder creativity and the acquisition of “eyeballs”31 contrast, always have the choice of starting out
for effective bug detection. without contributor agreements and introducing
them at a later stage, should this be desirable.
24 This approach is thus perfectly acceptable for young
and small projects wanting to test the ground and
explore their creativity. Should the project take off, D. Projects That Actively Manage
there is no obstacle to commercialization as such, if the Intellectual Property
no contributor agreements have been requested – it
all depends on the outbound license used.32
of Contributions Through
Contributor Agreements
25 According to Schaarschmidt et al.,33 the outbound =
inbound approach is also suitable for R&D alliances 29 For other projects, legal certainty, ability to enforce
not interested in paying expensive lawyers for or flexibility to use the code outweigh the outbound
drafting complicated contracts on the distribution licensing terms outweigh the administrative burden.
of the intellectual property rights of the ensuing
products.34 Instead, everything is regulated by the 30 Those projects are governed by
public license. Thereby the completed product
belongs to the community, and its source is open 1. foundations,
and visible for everybody. Depending on the nature
2. development partnerships (co-operatives) and
of the public license, firms can practise open
innovation protection to different degrees: should 3. individual companies (single-vendor projects).
they use a strong copyleft outbound license, e.g. the
AGPL or the GPL, they are no longer able to market 31 A selection of those projects shall be presented
their investment directly; however, the competition below.
is also barred from doing so. Should they, on the
2 108 2014
I. Foundations Agreement (FLA). This agreement is strictu sensu a

CAA, since it triggers the transfer of ownership of
the contribution to KDE. But it also has a fall-back
1. The FSF clause: should ownership in the copyright not be
transferable due to compulsory national laws, an
exclusive license is granted.47
32 Although Stallmann may be regarded as the
forefather of the “inbound= outbound” approach, § 1 Grant
he soon abandoned this path for his own projects.
[..]Beneficiary assigns to KDE e.V. the Copyright in computer
He believed that the ability to re-license the code
and enforce the GPL terms in a court of law38 were programs and other copyrightable material world-wide, or in
countries where such an assignment is not possible,
fundamental to ensure a defensive free software
regime. grants an exclusive licence, including, inter alia:
1. the right to reproduce in original or modified form;
33 To that end he created the Free Software Foundation 2. the right to redistribute in original or modified form;
(FSF), a neutral organization entrusted with the 3. the right of making available in data networks, in particular
administration and enforcement of the copyrights via the Internet, as well as by providing downloads, in original
in the ensuing collaborative works. In order for the or modified form;
FSF to become copyright holder of these works, each 4. the right to authorize third parties to make derivative
contributor is asked to sign a Contributor Assignment works of the Software, or to work on and commit changes or
Agreement (CAA) transferring his ownership rights perform this conduct themselves.
in the respective contribution to the foundation. 39 As a fiduciary, KDE is interested in sustaining the
For some GNU packages,39 the FSF does not accept project and ensuring its longevity. Accordingly,
contributions of developers who have not signed two main tools are necessary to achieve this aim:
a CAA. Problematic in this respect is that some the ability to 1) re-license48 and adapt the project to
jurisdictions do not accept outright transfers of new technological circumstances and 2) defend the
ownership in copyright,40 rendering the CAA in those project and its developers in its own name:49
jurisdictions most probably unenforceable. 41
§ 3 K DE e.V.’s Rights and Re-Transfer of Non-Exclusive
34 This problem is most salient in Europe, where the Licence
FSFE,42 a sister organization of the FSF, provides legal
support for developers and project managers. KDE e.V. shall exercise the granted rights and licences in
its own name. Furthermore, KDE e.V. shall be authorized to
enjoin third parties from using the software and forbid any
KDE e.V.
unlawful or copyright infringing use of the Software, and
shall be entitled to enforce all its rights in its own name in
35 A prominent protégé of the FSFE is KDE, e.V., and out of court. KDE e.V. shall also be authorized to permit
whose community builds the graphic user interface third parties to exercise KDE e.V.’s rights in and out of court.
(desktop) for Linux- or Unix-based operating
systems.43 40 KDE, in line with the FSFE, chose CAAs, or exclusive
licenses, because it believes that simple, non-
36 KDE is the prototype of a community-initiated exclusive CLAs are not as effective when going to
project. Ever since the project started, the court or trying to re-license.50
community has been driven by the creativity of
the volunteers who contribute to the project. The 41 The former has recently been confirmed by
administrative affairs of KDE are governed by the Engelhardt.51 The latter, however, is being
board, but there is no steering or central control for circumvented expressly and impliedly by other
the development direction. The freedom of the code projects discussed below, an indication that in
and independence of the developers is paramount.44 the absence of common standards and/or judicial
precedents, legal uncertainty as to the effects of
37 KDE licenses the ensuing code under the LGPL for the CAAs and CLAs is still common.
core framework and the GPL for applications ensuring
that the code remains open for the community and
is not appropriated by a third party.45 Although the 2. The Open Source Initiative (OSI)
software produced in this way is not marketable as
such, many businesses provide support, services and 42 With the birth of the OSI52 and the proliferation
training around the freely downloadable software. of public licenses, the open source business model
Famous examples constitute the distributors Mint, grew popular with companies that had previously
Kubuntu and Debian.46 been sceptical and hostile due to the viral effect of
the free software. Permissive licenses, such as the
38 In line with the FSF(E)’s ideals, KDE e.V. takes up the
Apache or the BSD license, however, encouraged
role of fiduciary for its developers and asks, but does
companies interested in displacing established
not compel, everybody to sign a Fiduciary License
2 109 2014
Sylvia F. Jakob
software companies to form alliances or sponsor There is, however, no explicit right to enforce the copyright
open source projects.53 in a court of law. This may be explained with the fact that
Apache, and projects that follow Apache’s example, are not too
43 As some of these companies were fierce competitors,54 keen to be involved in copyright infringement claims.64 Since
the idea to outsource the administrative affairs and the code is designed to be used within proprietary products,
intellectual property issues for the ensuing product all that is required is a copyright notice and the preparedness
to a neutral, non-profit organization began to gain to provide the source code upon request. Hitherto cease and
desist letters were sufficient to secure this outcome.
momentum.
Since non-exclusive licenses do not automatically
confer standing in a court of law, however, it might be
a.) Apache recommendable to include such a right expressly in a CLA,
simply to be in the position to sue should it become necessary
44 One of those organizations is Apache, a US 501(c) at some point.
(3) non-profit corporation which provides
organizational, legal and financial support for
a broad range of over 140 open source software II. Development Partnerships
projects.55
(Co-operatives)
45 Projects that have been admitted as Apache projects
are promoted under the Apache license, a permissive 50 More and more (commercial) software customers
license that allows companies to take the open are dissatisfied with what they perceive as “vendor
source infrastructure, change it and subsume it lock-in” and join forces to commission open source
into closed source projects. The Apache license, software solutions that replace individually grown
for instance, would be recommendable for the strategic IT systems and are flexible enough to meet
development of a reference implementation for the challenges of the future.
a standard.56 Thereby the competition is shifted
from the infrastructure market to the market for 51 These alliances are generally organized as
applications and complementary products.57 development partnerships or co-operatives in a
specific economic area.
46 Companies or individual developers engage in
particular Apache projects because they are 52 Particularly problematic is e.g. the maintenance
interested in supporting the quality of the Apache and development of energy and water networks65
trademark. It allows them to vouch for the openness in light of the transition from the fossil fuel and
and quality of the software they use within their end- nuclear energy age to the solar and efficient energy
products.58 Some, in turn, contribute for intrinsic age (Energiewende). This is largely due to the fact
reasons, wanting to give something back to the that the IT-systems landscape dates back to a time
community. when software developers designed monolithic,
proprietary systems that were unable to interact
47 Since Apache caters for many commercially with each other or allow for new functionalities
oriented companies that form R&D alliances under without exposing the providers to considerable
its auspices, it has a strong interest in being able expenses.
market the code under its trademark and vouch for
the provenance of the code. As such, a prerequisite 53 A solution is the commissioning of open source
of becoming a committer and being able to submit solutions which use service-oriented architecture
patches is to sign an Individual59 Contributor License (SOA) to break the monolithic software incrementally
Agreement(ICLA).60 and integrate it as separate components.
48 Apache rejects CAAs as these are difficult to obtain.61 54 Other fields include e.g. the automotive industry
The companies for which most individual developers in the form of AUTOSAR,66 which is an open and
work do not want to part with the intellectual standardized automotive software architecture
property of the individual contributions in case jointly developed by automobile manufacturers,
they are patentable or otherwise commercially suppliers and tool developers whose objective is to
applicable.62 create and establish open standards for automotive
E/E (Electrics/Electronics) architectures.67
49 Through the CLA, however, they retain the
intellectual property rights, and grant Apache:63 55 Such user co-operatives place orders with different
IT providers who develop new functionalities and/
a perpetual, worldwide, non-exclusive, no-charge, royalty- or cross-system interfaces. In order to avoid future
free, irrevocable copyright license to reproduce, prepare vendor lock-in, a prerequisite is the transfer of
derivative works of, publicly display, publicly perform, copyrights in the developed work to the user co-
sublicense, and distribute [their] Contributions and such operative in the form of a CAA, akin to a “quasi-
derivative works.
2 110 2014
employment relationship”. Since research in this provides engineering services, consulting, training
area is still in its infancy, and details as to the exact and support for the development of embedded
wording of the CAA are being held confidential, no systems for the automotive industry; an example
further information could be retrieved.68 for the latter is Digia, the owner of the programming
environment QT, which will be explored later.
III. Individual Companies

2. ETAS
(Single Vendor Open Source
Software Project) 62 ETAS and Robert Bosch Engineering and Business
Solutions (RBEI) jointly published BUSMASTER,75 a
56 Single-vendor commercial open source software free open source PC software that allows for flexible
projects are projects that are owned by a single modification and extensions regarding bus systems,
firm that derives a direct and significant revenue protocols and hardware interfaces. The current
stream from the software. Using a single-vendor BUSMASTER version is based on the preceding
open source approach, firms can get to market faster software tool CANvas, conceptualized, designed and
with a superior product at lower cost than possible developed by RBEI.
for traditional competitors.69
63 When the company decided to open source the code,
57 Where a firm decides to open-source previously they chose the LGPL, which permits the provision of
closed source software (firm-initiated – single proprietary add-ons that can be dynamically linked
vendor project),70 it will most certainly want to to the open source core.
be able to have the intellectual property rights
in the contributions in order to effect different 64 In addition, they opted for a CAA based on Harmony
commercialization strategies and business models.71 v. 1.0.76 The main reason for choosing the CAA was to
be able to adapt the project to new circumstances,
58 Single vendors thus tend to use GPL licenses and e.g. if at some point it might be beneficial for the
request extensive contributor agreements in the project to be turned into an Eclipse project, there
form of CAAs or CLAs that allow them to pursue a dual would have to be a licensing change from the
licensing strategy.72 This approach is particularly LGPL to the Eclipse Public License (EPL), which are
smart since code developed under the GPL does incompatible and could not be effected without the
not normally lend itself to being commercialized permission of all contributors.77
in different ways. The traditional business model
around GPL licensed code is the provision of 65 Of course, owning the copyright in the contributions
support, services and training, as offered by the ETAS is automatically able to use the code in
Linux distributor Red Hat. Due to the viral nature proprietary products, to defend violations in a court
of the GPL, it is impossible to include GPL-licensed of law and to license the code commercially to third
code in proprietary products. The dual licensing parties without having to explicitly state it in their
strategy, however, opens new revenue streams for CAA, although they do so:78
the initiating firm by e.g.
We may license the Contribution under any license, including
59 including the code in proprietary products of their copyleft, permissive, commercial, or proprietary licenses...
own and selling commercial licenses to competitors.
66 The outright transfer of ownership has, however,
often been criticized as too restrictive for two main
1. CAA or CLA? reasons:79 It bars developers (and their companies)
from exploiting their contributions otherwise, e.g.
60 A widespread belief is that in order to be able to by contributing to a different project, using it in a
sublicense GPL-licensed code under any license, commercial distribution or applying for a patent.
including commercial licenses, there would have to In addition, there is the constant danger of the
be an outright transfer of ownership in the form of project management changing its business strategy
a CAA. and converting the open source project into a
commercial one.
61 Many projects therefore choose an outright
transfer of ownership – including the fall-back 67 In the following paragraphs these points shall be
option of granting an exclusive license should discussed, highlighting the solutions hitherto
local copyright laws not allow a straight transfer developed under Harmony v. 180 and as such
of ownership.73 Others, however, bend the wording adopted by ETAS, or where appropriate by
of a CLA to the extent they reserve the rights contributoragreements.org.81
normally only attainable under a CAA. An example
of the former approach is ETAS,74 a company that
2 111 2014
Sylvia F. Jakob
a.) The Contribution Cannot Be b.) Project Management Might

Exploited Otherwise Close the Open Source Project
68 Some critics of CAAs argue that by requesting a CAA, 72 Unfortunately, Oracle changed its business strategy
the original developer is barred from exploiting after acquiring SUN and “closed” open Solaris, an
the contribution otherwise. Particularly Apache, open source operating system with the ability
referred to above, stated that they chose CLAs since to become a serious competitor to Linux. This
CAAS were too difficult to obtain. However, this left thousands of developers owning a part to an
point of criticism could be mitigated by providing unattainable whole and evoked the anger of the
a generous license back to the contributor. For community.86
instance, this could take the form envisaged by
ContributorAgreements.org,82 a project dedicated 73 Drafters of CAAs have thus suggested ensuring that
at the standardization of contributor agreements: the transfer of ownership takes place only upon
the condition that the project will always maintain
Upon such grant of rights to Us, We immediately grant to an open source branch. For instance, this could be
You a worldwide, royalty-free, non-exclusive, perpetual and framed as follows:
irrevocable license, with the right to grant or transfer an
unlimited number of non-exclusive licenses or sublicenses to As a condition on the exercise of this right [to use the
third parties, under the Copyright covering the Contribution contribution under any license], We agree to also license the
to use the Contribution by all means, including, but not Contribution under the terms of the license or licenses which
limited to: We are using for the Material on the Submission Date87
to publish the Contribution,
to modify the Contribution, to prepare Derivative Works 74 This approach was suggested by Harmony’s CAA v.
based upon or containing the 1.0 and is currently used by ETAS.
Contribution and to combine the Contribution with other
software code, 75 ETAS thus reserves the right to use the contribution
to reproduce the Contribution in original or modified form, under any license; however, it grants a broad license
to distribute, to make the Contribution available to the public, back to the developer and ensures there will always
display and publicly perform the Contribution in original or be a branch under the LGPL, the open source license
modified form.83 in force on the submission date.
This license back is limited to the Contribution and does not
provide any rights to the Material.
3. Digia
69 Given this wording, the developer has prima facie all
the rights he would have had he only ever signed
76 Another approach might be the use of a CLA reserving
a CLA.
far-reaching rights. A prominent example is Digia,88
the owner of the programming environment QT.89
70 Another way forward could be a joint, independent
Digia is a Finnish company which not only provides
copyright assignment. This approach allows each
commercial support, services and training around
individual party to use the contribution as the
QT, but also distributes the GPL-licensed code under
“quasi-owner”, in the words of one interviewee:
commercial licenses.90 These allow interested parties
one party can do whatever they want with licensing in to modify and extend the code without having to
the future and the other party can do whatever they want make the changes available to the public. Digia
– it’s like having two separate works.84 requires every developer to sign a CLA in which he
agrees to license his contribution and give Digia a
71 A famous example using joint, independent
copyright assignments was Sun/Oracle: sublicensable, irrevocable, perpetual, worldwide, non-
exclusive, royalty-free and fully paid up copyright and
Contributor hereby assigns to Sun joint ownership in all trade secret license to reproduce, adapt, translate, modify,
worldwide common law and statutory rights associated with and prepare derivative works of, publicly display, publicly
the copyrights, copyrights application, copyright registration perform, sublicense, make available and distribute (the)
and moral rights in the contribution to the extent allowable Licensor’s Contribution(s) and any derivative works thereof
under applicable local laws and copyright conventions. under license terms of Digia’s choosing including any Open
Contributor agrees that this assignment may be submitted Source Software license.
by Sun to register a copyright in the contribution. Contributor
retains the right to use the contribution for Contributor’s 77 Digia is thus granted a non-exclusive license which
85
own purposes.[..] conveys the right to sublicense and make available
the code under any license of Digia’s choosing, i.e. a
right to re-license may also be inferred.
78 Digia is further aware that a multi-licensing business

model is not feasible without being in the position to
2 112 2014
pursue enforcement of the code in front of a court 84 Developers in turn want to retain the right to use
of law: the contribution in another project, possibly even
in a commercial application or even a patent, and be
3.5 Enforcement Authorization sure that the open source project will always remain
under a free and open source license and not become
The Licensor hereby authorizes, and agrees to execute a victim of a business strategy change.
without undue delay any and all documents reasonably
necessary to effect such authorization, for Digia to enforce
85 Since there is no accepted standard definition of
the Licensor’s copyrights in and to a Licensor Contribution
on the Licensor’s behalf against any third parties as Digia at what a contributor agreement should contain in
its discretion deems appropriate, at Digia’s expense. order to have a particular effect, legal departments
constantly re-invent the wheel and draft contributor
In jurisdictions where such authorization is not possible agreements either based on outdated assumptions or
under mandatory applicable law, the Licensor hereby adventurous developments of the law. These reduce
undertakes upon Digia’s request and at Digia’s expense, to act the understandability and add to the confusion
jointly with Digia (as a co-plaintiff) in enforcing the Licensor’s and distrust of developers and their respective
copyrights,[...]91 employers.
79 In line with Engelhardt’s assumptions that a non- 86 It might thus be time to start thinking about a
exclusive license does not per se confer standing in standardization effort by means of an open source
a court of law, Digia expressly reserves the rights contributor agreement platform, where interested
to have standing to defend possible violations in a parties come together and decide what infrastructure
court of law. Had Digia chosen a CAA, it would not should underlie every contributor agreement. These
have had to make these rights explicit. parties should include developers, project managers,
product managers and lawyers.
80 Digia thus assumes it can obtain the same rights
conveyed by an outright transfer of ownership 87 It should have a modular architecture, so that
through a CLA if they are expressly listed therein. interested parties could add individual conditions
Whether this is truly the case has not yet been tested. and rights depending on their particular needs. All
of these modules would be endorsed by a legally
81 It is also important to note that critics condemn far- qualified committee, thus ensuring that the use of
reaching CLAs to the same extent as CAAs elaborated a contributor agreement of said format would be a
above. Although a CLA allows a contributor to qualitatively high legal document produced in the
otherwise exploit the contribution, there is always transparency of the open source process.
the danger of a single vendor abandoning the open
source project and leaving a developer with a part
to an unattainable whole. For CLAs it is therefore E. Conclusion
equally important to include a clause stating that
any license grant takes place upon the condition that
88 To conclude, it is safe to say that the divide between
the project will always remain under a free and open
projects which use outbound as inbound and those
source license.
which actively manage intellectual property rights
is (currently) here to stay.
IV. Outlook 89 It would be tilting against windmills to try to
convince the unconviceable of using contributor
82 From the aforesaid, one may conclude that there agreements of any sort. Neither the standardization
is a variety of foundations/cooperatives and single nor possible automatization of rights management
vendor open source businesses with contrasting is in these projects’ interest as it would mean an
ethos using different CAAs and CLAs for differing increased administrative burden, i.e. costs, which
purposes. would be difficult to raise.92
83 Upon a closer look, however, it becomes clear 90 On the other hand, more and more projects have
that despite having different agendas, parties of an interest in being able to actively manage the
contributor agreements generally have the same intellectual property of their contributions. Due
aim: owners want to be able to perform all acts to the lack of a common standard, however, legal
exclusively reserved for copyright owners under departments constantly re-invent the wheel,
copyright law, i.e. copy, distribute, modify and resulting in a very unhomogenous contributor
communicate to the public, but most importantly agreement landscape, prone to distrust and criticism.
they want to be able to re- and sub-license the code
to third parties, in some cases even under a different 91 The current paper thus proposes a standardization
outbound license, and to defend possible violations effort, using the very same open source method to
in a court of law.
2 113 2014
Sylvia F. Jakob
create an acceptable infrastructure for understand- 20 Large projects written in Perl include cPanel, Slash, Bugzilla,
able and effective contributor agreements. RT, TWiki, and Movable Type; high-traffic websites that use
Perl extensively include bbc.co.uk, Priceline.com, Craigslist,
1 Perl Foundation, http://www.perlfoundation.org/, Linux IMDb, LiveJournal, DuckDuckGo,Slashdot and Ticketmaster. It
Foundation, http://www.linuxfoundation.org/, Mozilla is also an optional component of the popular LAMP technology
Foundation, https://www.mozilla.org/en-US/foundation/, stack for web development, in lieu of PHP or Python; see
accessed 16 May 2014. http://en.wikipedia.org/wiki/Perl, accessed 16 April 2014.
2 Busmaster of ETAS, http://www.etas.com/de/products/ 21 http://www.perlfoundation.org/how_tpf_works, accessed
applications_busmaster.php, accessed 16 May 2014. 16 March 2014.
3 Maracke, C., Editorial: Copyright Management for open 22 Perl Foundation President, personal communication, August
collaborative projects: Inbound Licensing Models for open 2013.
Innovation, Volume 10, Issue 2, August 2013, p. 143, http:// 23 http://en.wikipedia.org/wiki/Perl_6.
script-ed.org/wp-content/uploads/2013/08/editorial.pdf, 24 http://en.wikipedia.org/wiki/LLVM.
accessed 7 May 2014.
25 http://llvm.org/.
4 Maracke, C., Metzger, A., Concept Paper: Network of Stewards
26 http://llvm.org/docs/DeveloperPolicy.html, accessed 16
for Free and Open Source Software projects, p. 2, http://
April 2014.
contributoragreements.org/wp-content/uploads/2013/05/
ConceptPaper_NetworkV9_Abstract.pdf, accessed 16 May 27 Jaeger/Metzger, Open Source Software, Rechtliche
2014. Rahmenbedingungen der Freien Software, 3. Auflage, Verlag
C.H. Beck, 2011, p.12.
5 Famous examples constitute e.g. the Linux Kernel, Perl 5 or
the LLVM Project . 28 See e.g. the court in Versata v. Ameriprise, p. 9 http://de.scribd.
com/doc/212507936/Versata-Software-v-Ameriprise,
6 Much research on the topic is conducted in the field of
computer science and economics; see e.g. Riehle, D. Three
Positions on the Future of Open Source Research, p. 2, http:// 29 See e.g. Lerner & Tirole, Some Simple Economics of
dirkriehle.com/wp-content/uploads/2010/01/FOSS-2010- Open Source,THE JOURNAL OF INDUSTRIAL ECONOMICS
Position-Paper.pdf, Controlling and Steering Open Source 0022-1821,Volume L, June 2002 No., p. 201,202, http://
Projects, IEEE Computer Society, July 2011, p. 94. onlinelibrary.wiley.com/doi/10.1111/1467-6451.00174/pdf,
accessed 15 June 2013, Gonzales- Barahona, J.M., Robles,
7 A full transcript of any given interview may be available upon
G., Trends in Free, Libre, Open Source Communities: From
request: sylviafjakob@live.de.
Volunteers to Companies, IT 55 (2013) 5, Oldenbourg
8 Riehle, D., Friedrich – Alexander University of Erlangen Wissenschaftsverlag, p. 173- 180, p. 174.
(Nürnberg, Germany).
30 See e.g. http://www.pro-linux.de/news/1/11486/gericht-
9 Corbeth, J., Kroah-Hartman, G. & McPherson, A., Linux Kernel skype-verletzt-die-gpl.html, accessed 16 May 2014.
Development: How Fast It Is Going, Who Is Doing It, What They
31 Famous quote of Raymond, E.S.: “Given enough eyeballs, all
Are Doing, and Who Is Sponsoring It, A white paper by the
bugs are shallow” ( Linus’ Law), in The Cathedral and the
Linux Foundation, 2009, http://www.linuxfoundation.org/
Bazaar, 1999, p. 22
sites/main/files/publications/whowriteslinux.pdf, accessed
14 May 2014. 32 Where a strict copyleft license is used, for instance the AGPL,
the code cannot be incorporated into closed source products,
10 https://groups.google.com/forum/#!msg/comp.os.minix/
but many other business models can be pursued. Where a
dlNtH7RRrGA/SwRavCzVE7gJ, accessed 4 June 2014.
weak copyleft outbound license has been used, for instance
11 http://web.archive.org/web/20110721105526/http:// the BSD license, any sort of commercialization is allowed.
www.kernel.org/pub/linux/kernel/Historic/old-versions/
33 Schaarschmidt, M., Bertram, M., Zerwas, D.&
RELNOTES-0.12, accessed 4 June 2014.
Kortzfleisch, H., Kommerzialisierungsansätze in Open
12 Contreras, F., Why the Linux Kernel is the most important Source Software Projekten, HMD, 283, p. 6-
project in history, http://felipec.wordpress.com/2011/03/06/ 16,p. 12, http://download.springer.com/static/pdf/209/
why-linux-is-the-most-important-software-project-in- art%253A10.1007%252FBF03340658.
history/, accessed 16 April 2014.
34 See e.g. AMQP.org, an alliance of blue chip companies that
13 17 U.S.Code § 201 c). developed an advanced message queuing protocol, which
14 Linus as copyrightholder of the composite Linux Kernel: was recognised as an international standard and does not
http://yarchive.net/comp/linux/collective_work_copyright. request CAs of any sort: http://www.amqp.org/, accessed 16
html, accessed 20 May 2014. May 2014.
15 Discussion of Contributor Agreements between Linus Torvalds, 35 See e.g. the Apache License v. 2, http://oss-watch.ac.uk/
Greg Kroah-Hartmann & others on Google + on 20 January resources/apache2 or the BSD license http://oss-watch.ac.uk/
2014, https://plus.google.com/111049168280159033135/ resources/modbsd, accessed 15 May 2014.
posts/NstZfwXbAti, accessed 2 April 2014. 36 “At the General Assembly of KDE e.V. in August 2008 the
16 17 U.S.Code § 201 c) other jurisdictions? membership voted to adopt a Fiduciary Licensing Agreement
17 17Discussion of Contributor Agreements between as the preferred form for assigning copyright to KDE e.V.:
Linus Torvalds, Greg Kroah-Hartmann & others on http://ev.kde.org/rules/fla.php, accessed 24 June 2014.
Google + on 20 January 2014, https://plus.google. 37 http://bit.ly/1Bk5Vld
com/u/0/111049168280159033135/posts/NstZfwXbAti, 38 Metzger, A., Internationalisation of FOSS contributory
accessed 2 April 2014. Copyright Assignments and Licenses: Jurisdiction-Specific or
18 Dafermos, G., On the fourfold structure, http://p2pfoundation. “Unported”, SCRIPTed, Vol. 10, Issue 2, August 2013, p. 178-
net/Linux_-_Governance, accessed 16th April 2014 206, p. 179.
19 http://opensource.org/licenses/Artistic-1.0, accessed 16 April 39 Metzger, A., Internationalisation of FOSS Contributory
2014; see further Jacobsen v. Katzer for the enforceability of Copyright Assignments and Licenses: Jurisdiction-Specific or
the Artistic License, http://www.cafc.uscourts.gov/images/ “Unported”, SCRIPTed, Vol. 10, Issue 2, August 2013, p. 178-
stories/opinions-orders/08-1001.pdf, accessed 16 April 2014. 206, p. 179.
2 114 2014
40 See e.g. § 29 German Copyright Law. 71 Schaarschmidt et al., supra, p. 11.

41 https://fsfe.org/work.en.html, accessed 14 May 2014. 72 See also Comino,S. & Manenti, F.M., Dual licensing in Open
42 https://fsfe.org/index.de.html, accessed 14 May 2014. Source Software markets, http://www.webmeets.com/files/
papers/EARIE/2009/244/CominoManenti_Dual_licensing.pdf,
43 http://www.kde.org/, accessed 15 April 2014.
44 Former Board Member of KDE, Mirko Boehm,personal
73 See KDE supra.
communications, September 2013.
74 ETAS, http://www.etas.com/en/index.php?langS=true&,
45 Ibid.
46 http://www.kde.org/download/distributions.php, accessed
75 BUSMASTER, http://www.etas.com/en/products/
12 May 2014.
applications_busmaster.php?langS=true&, accessed 16 May
47 http://ev.kde.org/resources/FLA-prefab.pdf, accessed 24 2014.
February 2014.
76 CAA, https://raw.githubusercontent.com/rbei-etas/
48 http://ev.kde.org/resources/FRP.pdf, accessed 24 February busmaster-documents/master/contributor_agreement_
2014. entity.pdf, accessed 24 November 2013.
49 http://ev.kde.org/resources/FLA-prefab.pdf, accessed 24 77 Personal communication with the product manager of
February 2014. BUSMASTER, Dr. Tobias Lorenz, August 2013.
50 Legal Counsel, FSFE, personal communication, October 2013. 78 CAA, see note 73.
51 Engelhardt, T., Drafting Options for Contributor Agreements 79 Personal communications with several stakeholders, August
for Free and Open Source Software: Assignment, (Non) – October 2013.
Exclusive Licence and Legal Consequences. A Comparative
80 http://harmonyagreements.org/, accessed 14 February 2014.
Analysis of German and US Law, SCRIPTed, Volume 10, Issue
2, August 2013, p. 148-176, p. 164-65. 81 http://contributoragreements.org/, accessed 16 May 2014.
52 http://opensource.org/, accessed 14 March 2014. 82 Ibid.
53 Riehle, D., The economic case for Open Source Foundations, 83 http://development.contributoragreements.org/, accessed
IEEE, January 2010, p. 86-90, p. 88. 16 May 2014.
54 Barahona-Gonzales, J., Trends in Free, Libre, Open Source 84 Personal communication with economist/ IT consultant,
Software Communities: From Volunteers to Companies, IT, 55 Joseph Potvin, Canada, August 2013.
(2013) 13, p. 173-180, p. 175, Oldenbourg Wissenschaftsverlag. 85 https://www.openoffice.org/licenses/jca.pdf, accessed 16
55 http://projects.apache.org/, accessed 27 January 2014. May 2014.
56 The standardization of the Java Portlet Specification 3.0 under 86 Personal communication with IT student, Jens Kadenbach,
the sponsorship of IBM is being developed, at least in parts, August 2013, backed up by http://www.cnet.com/news/
under the auspices of the Apache Foundation. oracle-apparently-shuts-doors-on-opensolaris/, accessed 20
October 2013.
57 Personal communications with Java Portlet Specification
Manager, Martin Scott Nicklous, August 2013. 87 http://harmonyagreements.org/, accessed 16 May 2014.
58 Riehle, D., Controlling and steering open source projects, IEEE 88 http://qt-project.org/, accessed 16 May 2014.
Computer Society, July 2011, p. 96. 89 http://www.digia.com/, accessed 16 May 2014.
59 https://www.apache.org/licenses/icla.txt, accessed 7 March 90 http://www.digia.com/en/Home/Company/Press/2012/
2014. Digia-to-acquire-Qt-from-Nokia/, accessed 16 May 2014.
60 For those who are employed by a particular company, the 91 http://qt-project.org/legal/
employer has to sign a Corporate CLA (CCLA): http://www. QtContributionLicenseAgreement.pdf. An interesting twist
apache.org/licenses/cla-corporate.txt, accessed 7 March 2014. in Digia’s licensing terms is the granting of “consideration”,
61 Personal communication with board member of the Apache which turns the CLA prima facie into a sale; see ECJ in Usedsoft
Foundation, Bertrand Delacretaz, August 2013. v. Oracle, C 128/11).
62 Ibid. 92 Just think of the 500,000 Perl 5 developers.
63 https://www.apache.org/licenses/icla.txt, accessed 24
February 2014.
64 Personal communication with Apache board member
Bertrand Delacretaz, August 2013, and Django Foundation
President, Russell Keith- Maguee, October 2013.
65 Herdt, P., Konsortiale Software Entwicklung im Energiesektor,
http://www.osbf.eu/blog/konsortiale-open-source-
softwareentwicklung/im-energiesektor/#.U3ZGG1d-r6M, 26
November 2013, accessed 15 March 2014.
66 AUTomotive Open System Architecture, http://www.autosar.
org/, accessed 15 April 2014.
67 http://en.wikipedia.org/wiki/AUTOSAR, accessed 16 May
2014.
68 Herdt, P., supra, p. 6
69 Riehle, D., The commercial open source business model,
http://dirkriehle.com/publications/2009-2/the-commercial-
open-source-business-model/, accessed 18 November 2013.
70 Riehle, D., The single vendor Commercial Open Source Business
Model, Information Systems and e-Business Management
archive, Volume 10 Issue 1, March 2012, p. 5-17, p. 5.
2 115 2014
Pekka Savola
Proportionality of Website Blocking:

Internet Connectivity Providers as Copyright Enforcers
by Pekka Savola*, Lic.Sc.(Tech.), Master of Laws, LL.D. candidate. Legal Counsel at CSC–IT Center for Science Ltd,
Researcher at University of Helsinki, Finland,
Abstract: Internet connectivity providers have is provided. The major observation is that the under-
been ordered to block access to websites facilitat- lying goal of copyright enforcement has implications
ing copyright infringement in various EU countries. on how the scale tilts. In particular, ineffective en-
In this paper, the proportionality of these enforce- forcement mechanisms can be more easily accepted
ment measures is analysed. After addressing prelim- if the goal of symbolic, educational or politically mo-
inary questions, the recent CJEU ruling UPC Telekabel tivated enforcement is considered legitimate. On the
Wien (C-314/12) and then case law from all Member other hand, if the goal is to decrease the impact of in-
States are examined from the perspective of propor- fringement, higher efficiency and economically quan-
tionality. Finally, five criteria are submitted for pro- tifiable results may be required.
portionality analysis, and a proportionality evaluation
Keywords: Proportionality, Fundamental Rights Conflicts, Copyright Enforcement, Website Blocking, ISP
© 2014 Pekka Savola
Recommended citation: Pekka Savola, Proportionality of Website Blocking: Internet Connectivity Providers as Copyright
Enforcers, 5 (2014) JIPITEC 116, para. 1.
3 Proportionality evaluation is depicted as three or

A. Introduction four steps. The initial and sometimes omitted step is
the legitimacy of the pursued objective.7 The first two
1 There has been an increasing tendency to oblige of the three main stages are suitability and necessity
various kinds of intermediaries to perform web of the means in achieving the objective, i.e. that
filtering and aid in enforcement.1 This paper focuses the goal can be achieved and there are no better
on enforcement of specific right (copyright), target means, respectively. Third, the actual balancing part
(Internet connectivity, i.e. access providers), means is proportionality in the narrow sense (stricto sensu),
(court order to block access to a website) and i.e. whether the burden of the means is excessive in
perspective (proportionality of such order).2 relation to the objective sought.8
2 Intermediaries are typically faultless third parties 4 In this context, proportionality analysis concerns
with respect to the dispute between right holders fundamental rights conflicts in national measures
and infringers.3 Therefore, passive or neutral implementing EU legislation. Because blocking
intermediaries are generally exempt from liability measures are unlikely to affect the fundamental
within varying constraints. To balance the lack of freedoms,9 the evaluation occurs between
liability, a court may issue an injunction ordering – for conflicting fundamental rights. Here EU and
example, to stop or prevent a specific infringement.4 national fundamental rights coexist, but in conflict
Indeed, intermediaries are an attractive tool to the supremacy of EU law prevails.10 CJEU case law
enforce local policies on foreign sites.5 However, provides minimum and maximum standards11 and
broad liability for activities that intermediaries guidelines that must be applied when national courts
cannot and need not control or monitor would interpret EU law. Issues at stake are the effectiveness
result in inter alia stifling of innovation, preventive of protecting the right holders’ intellectual property
censorship and increased operating costs.6 in contrast to the costs and limits on the freedom to
conduct a business on the ISP and the limitations of
2 116 2014
Proportionality of Website Blocking
freedom of information (expression) on the users.12 store, nor a general obligation actively to seek facts
ECtHR has not made very significant rulings in this or circumstances indicating illegal activity.
aspect.13 The evaluation is augmented with more
intense scrutiny.14
II. Different Providers and
5 This paper is structured as follows. Section B first
discusses the differences in liability exemptions Liability Exemptions
between hosting and connectivity providers, and
what constitutes a general monitoring obligation. 8 While Internet service providers are not liable for
Then various parties’ interests, EU IPR enforcement information transmitted or stored, they may be
principles, and the effect of national legislation are subject to various obligations.17 As connectivity and
briefly covered. After these preliminary questions, hosting providers provide a different kind of service,
we move on to Section C, where the case law of the conditions and scope of potential obligations also
CJEU and all Member States is covered from the differ.18
proportionality perspective mixed with analysis
and commentary. Using these as a basis, Section D 9 The liability exemption of connectivity providers is
formulates five criteria for assessing proportionality based on neutrality, passivity and technical nature of
of website blocking. Finally, Section E provides automatic communication. According to the recital,
proportionality analysis. Brief conclusions are this implies lack of knowledge and control over the
presented last in Section F. transmitted information; deliberate collaboration
in order to undertake illegal acts is also excluded.19
B. Preliminary Considerations 10 On the other hand, the exemption of hosting

providers is conditional on awareness or knowledge
of illegal activities or facts or circumstances from
which illegality is apparent. Upon obtaining
I. Legal Basis of Website awareness of illegal material, hosting providers
Blocking Injunctions also need to act expeditiously to remove or disable
access to it. The exemption does not apply if the
6 Article 8(3) of the Infosoc Directive15 obliges provider has authority or control over the user
Member States to provide a possibility for copyright and the content.20 The awareness of facts relating
injunctions against intermediaries: to illegality appears to have been the grounds to
exclude the operators of sites such as The Pirate Bay
Member States shall ensure that rightholders are from the hosting defence; even if material on the site
in a position to apply for an injunction against might not be infringing, its role in overall infringing
activities has been apparent.21
intermediaries whose services are used by a third
party to infringe a copyright or related right. 11 In the latest case on hosting providers, L‘Oréal v eBay,
it was held that the operator must not have an active
7 Per Recital 59, the conditions and modalities are to
role allowing it to have knowledge of the data stored.
be determined in national legislation. Essentially
To measure awareness (or “neutrality”22), a standard
identical provisions also exist for other intellectual
of diligent economic operator was established as to
property rights in fine of Article 9(1)(a) and 11 of the
when illegality should have become apparent.23
Enforcement Directive.16 Indeed, the E-Commerce
Directive allows national law to provide specific 12 This interpretation is inapplicable to connectivity
injunctions against connectivity providers in Article providers, because their liability exemption is not
12(3), but on the other hand prohibits general tied to knowledge or awareness in the same manner
monitoring obligations in 15(1): as hosting providers.24 Further, their role is more
passive, neutral and automatic, and transmitted
[12(3)]. This Article shall not affect the possibility data is transitory. They also have no obligation to
for a court or administrative authority, in act upon obtaining awareness of illegality25 unless
accordance with Member States’ legal systems, explicitly required by national law as provided by
of requiring the service provider to terminate or Article 15(2) of the E-Commerce Directive.26
prevent an infringement.
[15(1)]. Member States shall not impose a general III. Restrictions on General
obligation on providers, when providing the Monitoring and Orders
services covered by Articles 12, 13 and 14, to
monitor the information which they transmit or 13 The prohibition against imposing monitoring
obligations of a general nature applies to all kinds
2 117 2014
Pekka Savola
Private interests Public interests

of providers. Likewise, a general obligation to seek
facts or circumstances indicating illegal activity is IPR Holder IPR protection Sufficient protection, innovation,
policy, culture
forbidden. However, monitoring (in a fairly narrow
meaning) “in a specific case” by orders of national Connectivity
provider
Froodom to conduct a
business (and protection of
Market economy,
neutrality
network
authorities is possible.27 Court or administrative property)
authority may also require termination of present User Freedom of expression (and Democracy, freedom of expression
or prevention of specific future infringement.28 protection of personal data) in general, culture
In particular, in UPC Telekabel Wien rather severe Website operator Freedom of expression, right
to fair trial (and business
Possibility to enforce national
policies on foreign sites
requirements regarding judicial review were freedom)
imposed on generic orders targeting a website.29 In

contrast, the Advocate General had more explicitly 17 Intellectual property rights are not absolute,
suggested that a specific kind of generic blocking and it is impossible to completely protect them
order would not amount to a general monitoring through enforcement. Therefore, trying to find
obligation.30 the least restrictive means (LRM) to eliminate IPR
infringement is misguided. This specifically applies
14 Only hosting providers may be subjected to “duties to copyright, given the extensive exclusive rights
of care” in order to detect and prevent certain types also governing non-commercial activities, whereas
of illegal activities.31 National legislation may also in contrast e.g. trademarks or patents can be used by
establish procedures governing the removal or private individuals more freely. This was emphasised
disabling of access to information (i.e. notice-and- in Scarlet Extended and affirmed in UPC Telekabel Wien
takedown mechanisms).32 Examples of court orders very explicitly as follows:35
to prevent future infringements in the context
of hosting providers were suspending infringing There is, however, nothing whatsoever in the
users’ accounts or making user identification on the wording of [Article 17(2) of Charter stating that
marketplace easier.33 In national courts, there have
“Intellectual property shall be protected”] or in the
also been “stay-down” orders, obliging the hosting
provider to ensure that a specific infringement is Court’s case-law to suggest that that [intellectual
not repeated. Unless carefully constructed, these property] right is inviolable and must for that
might be disproportionate or amount to a general reason be absolutely protected.
monitoring obligation.34
18 A better question is to ask which degree of IPR
15 All in all, the differences in the legal basis and the scope enforcement is deemed appropriate when balanced
when comparing connectivity and hosting providers with other issues at stake, in particular other
suggests that appropriateness of injunctions varies. fundamental rights.36 This reflects the underlying
Because for connectivity providers the conditions (and unresolved) policy issue on the level and
for liability exemption are broader, similar constraints of enforcement an IPR holder is entitled
limitations could very well also apply to all types to.
of injunctions. Depending on circumstances, it may
be more proportionate and technically feasible to 19 Rather than trying to find LRM in general, one
order a hosting provider rather than a connectivity must survey the means and their trade-offs (e.g.
provider to implement a certain kind of blocking. effectiveness, costs and other impacts). Based on
In contrast, issuing orders grounded on duties of this analysis, the appropriate balance between
care or knowledge assumed by a diligent economic certain degrees of enforcement using a specific
operator at connectivity providers would not be means and other rights can be considered. In UPC
appropriate. Also, accepting the premise of narrower Telekabel Wien, issuing a generic order incurred
injunctions, all the conditions in case law relating to requirements to the national procedure in order to
hosting providers that restrict the orders (e.g. what ensure proportionality evaluation.37 This was noted
constitutes a monitoring obligation and principles more explicitly in the Advocate General’s Opinion
for weighing proportionality) would be prima facie that proportionality cannot be evaluated if the
valid. On the other hand, those conditions which necessary measures could not be reviewed.38
expand the scope should be critically evaluated.
V. IPR Enforcement
IV. Interests in Balancing Principles in EU Law
16 The following table summarizes private and public 20 The Infosoc Directive does not provide guidance on
interests at stake; detailed elaboration is not possible how to balance injunctions of Article 8(3).39 On the
here. other hand, Article 3 of the Enforcement Directive
applies to (all) measures, procedures and remedies
necessary to ensure the enforcement of IPRs covered
2 118 2014
by the Directive. These shall be “fair and equitable VI. National Principles and
and shall not be unnecessarily complicated or costly,
or entail unreasonable time-limits or unwarranted
Triggers for Evaluation
delays”, and also “effective, proportionate and
dissuasive and shall be applied in such a manner as 24 National law may specify the grounds for a
to avoid the creation of barriers to legitimate trade proportionality evaluation or leave issuing the
order at the court’s discretion. While this may
and to provide for safeguards against their abuse.”40
give the national court leads on what to evaluate,
it is important to note that EU law provides the
Strong Neutral Weak minimum (and maximum) level of protection to
effective fair proportinate various competing rights. This will perforce affect
dissuasive equitable not complicated the court’s discretion and evaluation.51
no time-limits not abusable not costly
no delays no barriers to trade

25 As an example of national law,52 in Finnish Copyright
Act (404/1961, as amended by 679/2006) Section
60c(1):53
21 It is challenging to realize all of these at the same
time. In consequence, case-by-case balancing will be
[...The] court [...] may order [...the] intermediary
needed.41 In the preceding table these are classified
as “strong” (pro-rights), “weak” (pro-users)
to discontinue [...] unless this can be regarded as
and “neutral” principles. However, in different unreasonable in view of the rights of the person
interpretative contexts – for example, against making the material available to the public, the
infringer versus a third party – the principles could intermediary and the author.
have an entirely different meaning.42 Per Article 2(1),
a Member State may provide stronger enforcement 26 On the other hand, many countries seem to have
only “in accordance with Article 3”, i.e. the balance transposed Article 8(3) in a very minimal fashion,
must not be upset.43 almost verbatim, or without substantial additional
details or modalities.54
22 Norrgård noted in 2005 that a national judge could
reasonably adopt both a weak or strong enforcement
ideology based on the discretion granted by the C. Proportionality in Case Law
directive.44 A balanced interpretation was suggested
based on principles of Article 3, fundamental rights,
context-sensitivity and the comparative method.45 I. Introduction
These have since then materialised in CJEU case law,
and this paper also continues on that path. Similarly, 27 The latest blocking requests targeting connectivity
Ohly has underlined the need of proportionality to providers at the user end in EU/EEA are illustrated
balance effectiveness and dissuasiveness, referring in the following table. In other EU/EEA countries,
in a similar fashion to taking due account of the blocking has not been requested. The table notes the
specific characteristics of the case as noted in Recital highest court which has made the latest decision. The
17.46 rulings are final except the Netherlands (pending
appeal to Supreme Court). The type of proceedings
23 Both directives have been geared towards
(civil and/or criminal) has also been noted.
infringers. Applying principles of effectiveness and
dissuasiveness against a faultless intermediary is 28 “(X)” under “ruling” implies that the decision has
questionable.47 Indeed, in his Opinion in L’Oréal v been reversed in contrast to a lower court instance
eBay, Advocate General Jääskinen was not convinced or earlier proceedings. This illustrates that while the
that the identical scope of injunctions available general trend has been to order one or more ISPs
against the intermediary and the infringer would to block access to a website, in some cases requests
be a reasonable interpretation of Article 11 of the have also been rejected on various grounds. The
Enforcement Directive.48 Similarly, the requirement most prominent reason for rejection (particularly
for context-sensitivity would suggest caution in Ireland and Norway, and arguably in Germany)
with regard to third-party injunctions.49 Further, has been attributed to the lack of legal basis due to
the notions attached to injunctions are different the implementation (or lack thereof) of Article 8(3).5
and comparisons difficult between infringers and
intermediaries as well as between legal systems.50
2 119 2014
Pekka Savola
Directive.60 The system would also be questionable

Country Site Provider Date Court Type Ruling from the perspective of users’ data protection and
Vodafone freedom of expression, as it would have applied
Spain Other etc. 16.7.2014 Appeal Criminal No block (x)
to all the communications and would also have
Austria Kino.to
UPC
Telekabel 24.6.2014
Supreme/
CJEU Civil Block misidentified and blocked lawful communications.61
Appeal (to
This judgment is relevant, but given the intrusiveness
The NL TPB Ziggo etc. 28.1.2014 Sct) Civil No block (x) of the contested filtering system, the constraints it
First provides for blocking orders are limited.62
France Streaming All ISPs 23.11.2013 instance Civil Block
Belgium TPB
Belgacom
etc. 22.10.2013 Supreme Civil+Crim. Block (x) 32 UPC Telekabel Wien concerned a more restricted form
First of blocking, only one specified site. In summary, the
Ireland TPB UPC etc. 12.6.2013 instance Civil Block (x) CJEU in principle accepted generic orders (where
TeliaSonera adopted measures are chosen by the provider),
Finland TPB etc. 11.2.2013 Appeal Civil Block
but imposed judicial review requirements that
First
UK TPB etc. All ISPs 13.11.2013 instance Civil Block might make issuing them unattractive for national
Vodafone First courts. This restricted the applicability of generic
Greece Other etc. 16.5.2012 instance Civil Block
orders and transformed generic orders into court-
Germany Other Unknown 22.12.2010 Appeal Civil No block approved specific orders.63 The Advocate General
Denmark TPB Telenor etc. 27.5.2010 Supreme Civil Block was more straightforward and suggested rejecting
Norway TPB Telenor etc. 10.2.2010 Appeal Civil No block them instead of crafting requirements. In the end,
Italy TPB All ISPs 23.12.2009 Supreme Criminal Block (x) the essential result was the same.64 More detailed
analysis follows.
29 Next, a summary of all cases is provided, with
particular focus on issues relating to proportionality. 33 The CJEU held that national law must be transposed
The goal is to review arguments used in CJEU and in a manner allowing a fair balance to be struck
national decisions as a step of formulating the between competing interests. The law must also be
criteria for balancing. interpreted in the manner that takes fundamental
rights and proportionality into consideration.65
The fundamental rights conflict was construed
II. The Court of Justice between Charter Articles 17(2) (IPR holders’ right
to property), 16 (the provider’s freedom to conduct
30 As for blocking injunctions,56 in L’Oréal v eBay, it was a business), and 11 (users’ freedom of information).66
held that courts of Member States must be able to
order online marketplaces to take measures to stop 34 Business freedom was characterized as inter alia
current infringements as well as – if justified by the the right to freely use the economic, technical and
circumstances – prevent future ones. These must financial resources available to the provider. An
be effective, proportionate and dissuasive and must injunction was considered to constrain the free use
not create barriers to legitimate trade. The measures of resources, as it obliges taking measures which
must also be fair and not excessively costly. A couple may represent a significant cost, have considerable
of examples were provided.57 This provides little impact on the organization of activities, or require
guidance in the present context. difficult and complex technical solutions. However,
such an injunction was held not to infringe on the
31 Scarlet Extended applied the aforementioned very substance of conducting business.67 With a
proportionality principles to whether a connectivity generic order, the provider can choose measures
provider could be ordered to install a comprehensive that are best adapted to the resources, abilities
filtering system.58 The system would have monitored and challenges facing it. The provider can also
all the data relating to all customers in order to avoid being in breach of an order by proving at the
prevent any future infringement of claimants’ execution stage that all reasonable measures have
intellectual property rights. CJEU held that it been taken. Specifically, no unreasonable sacrifices
would have constituted a general monitoring are required.68 However, legal certainty was held to
obligation in violation of Article 15(1); nonetheless, require that the evaluation of reasonableness – i.e.
proportionality was also considered.59 As introduced which means can be expected – is done in court prior
in Promusicae, protection of the IPR must be balanced to issuing any sanctions due to the lack of sufficient
against other fundamental rights. Specifically, compliance.69 Essentially, the CJEU transferred the
the connectivity provider’s freedom to conduct a evaluation of proportionality from the ordering
business would be inappropriately balanced against phase to the execution phase, with a mandate
the interest to protect the IPR, because the order to provide for court review. In consequence, the
would require installing a complicated, costly and provider can obtain confirmation of compliance in
permanent system at the provider’s own expense. court by first doing a minimal implementation. Very
The cost and complicated nature of the system likely this will decrease the use of generic orders.70
were also against Article 3(1) of the Enforcement
2 120 2014
35 With generic orders and uncertainty, the A.G. had is apparent when considering the ineffectiveness
been concerned with providers opting for intrusive of blocking in general, and that there may not be
means, endangering users’ freedom of information “sufficiently effective” and “seriously discouraging”
or facing the risk of disobeying the order.71 The means that would not also be complicated, costly
CJEU’s approach was to impose requirements on the and/or too intrusive. The CJEU provided no guidance
adopted measures and require allowing court review on the provider’s required degree of involvement.
for both providers and users. In particular, measures The problem of unlawful material on a site which
must comply with Internet users’ right to freedom also includes lawful material was also not addressed.
of information: they must be strictly targeted to end In consequence, essentially both balancing exercises
infringement, and must not affect users lawfully (IPR holder vs provider and IPR holder vs user,
accessing information.72 The A.G. provided an respectively) were effectively deferred to national
example of collateral damage by referring to the evaluation or a future referral. Therefore, the A.G.’s
ECtHR ruling Yildirim v Turkey, where the whole guidelines on the fourth question are valuable and
Google Sites service was blocked when only one will be used tentatively as a basis.
site hosted there should have been targeted. This
violated the freedom of expression guaranteed by 40 When assessing suitability, the A.G. noted that
Article 10 ECHR in various ways.73 protecting the rights of others was a valid grounds
for limitation. It was questionable whether
36 The CJEU held that national courts must be able to ineffectiveness of blocking could imply unsuitability,
verify that the measures are appropriate. This may but he opined that this would not necessarily be the
not be possible if the provider chooses the measures case. While users can circumvent blocking, it does
and their use is not contested. In consequence, in not follow that every one of these users will do so. If
this case users must be provided locus standi to assert the user learns about a website’s illegality, he might
their rights before the court.74 It is submitted that forgo accessing the site. Finally, even if many users
this also applies to national courts issuing specific could circumvent blocking, all of them cannot. Also,
orders, unless proportionality has also been reviewed even if the same site is available through another
from the users’ perspective.75 domain name or IP address, it does not prima facie
mean that blocking would be unsuitable. The users
37 As previously noted, the IPR is not inviolable in here could also forgo accessing the site, and they
that it must be absolutely protected. It is possible need to use a search engine to find the site. With
that a complete cessation of IPR infringement is not repeated blocking, it is also more difficult to find
achieved, if for example some measures that would the site with search engines. In consequence, the
achieve the result would not be reasonable for the A.G. held that generally speaking even somewhat
provider, or because means do not exist or the goal ineffective means are not unsuitable.79
is not in practice achievable.76 The adopted measures
should still be “sufficiently effective” or at least 41 When assessing necessity, appropriateness and
discourage users from accessing the site and make proportionality stricto sensu, the A.G. noted that the
accessing the site difficult to achieve.77 Therefore, least restrictive means should be adopted. It would
even if infringement is not completely prevented, be the responsibility of the national court to make
the fair balance and proportionality in the light of the assessment based on guidelines and the non-
Article 52(1) is achieved provided that freedom of exhaustive list of considerations provided. First, the
information to lawful material is not unnecessarily estimated efficacy of the order would be one factor
prevented and that blocking prevents access or at to consider. However, the possibility to circumvent
least makes it difficult and seriously discouraged.78 blocking would not in general exclude the means.
Second, the complexity, costs and duration needs
38 The CJEU’s emphasis on effectiveness, a high degree to be assessed. The A.G. expected that this may be
of IPR protection, and the means which may place a test case, and more blocking injunctions might
significant obligations on the provider could be be pending. If one of them were disproportionate
read to imply that the balance should be shifted under those three grounds, the court might need to
more towards IPR protection. This reading must be consider whether proportionality would be ensured
rejected. The CJEU appears to have taken no clear by making the right holder liable for costs wholly or
stance on the balance of protecting the IPR and in part. Third, the right holders should have some
business freedom. means against an infringing site, but notably the
provider has no contractual relationship with the
39 The fourth question was whether it was proportional infringer. This implies that the right holder must
to order a provider to implement specific means even primarily target the infringer or the infringer’s
if these incurred significant costs and the blocking provider. Fourth, an injunction must not undermine
could be easily circumvented without technical the legitimate business of providing Internet
knowledge. The CJEU’s final answer displays naiveté connectivity. In general, the A.G. underlined freedom
or evasion, because those issues were also in the of expression and its necessity in a democratic
background in the third question. The problem
2 121 2014
Pekka Savola
society as essential and access to the Internet as an be used as a factor both in suitability (with limited
essential right.80 impact) and necessity. Third, the assumption seemed
to be that the connectivity provider might bear the
42 All of these seem applicable against the backdrop costs, but an alternative cost model could also be
of the CJEU’s judgment, with a potential caveat used particularly if the number of blocking requests
with regard to the third criterion. The CJEU had grew.
rejected contractual relationship as a prerequisite
for injunction.81 The A.G. had done likewise,
but had opined that it is “obvious” that an III. Expanding Blocking in the UK
intermediary without contractual link can “in no
circumstances” be held unconditionally responsible 45 A Usenet newsgroup service Newzbin, whose content
for stopping infringements, laying out implications consisted primarily of infringing files, was ordered
for proportionality of the third consideration.82 to stop copyright infringement with a restricted
Further, “in many cases such intermediaries are injunction.87 The site ceased operations, but
best placed” in Recital 59 (and respectively Recital essentially the same service reappeared overseas,
23 in the Enforcement Directive) implies that in and the claimants sought an order against the
some cases intermediaries are not best placed. In connectivity provider British Telecom to block access
that case, the infringer should be targeted. This also to the new Newzbin2 site. Judge Arnold examined
conveys an additional issue of which intermediary the issues in depth and inter alia found the specific
is best placed; typically there are three to five injunction order to be compatible with Articles 12
connectivity providers in the “chain” between the and 15(1) of the E-Commerce Directive and Article 10
user and the source. As an example, the A.G. opined ECHR. Against the backdrop of the referral of L’Oréal
that an injunction would be appropriate against a v eBay and Scarlet Extended, he held that the court had
website connected by a non-European provider, jurisdiction to block the whole site.88
because the website and its operators often cannot
be prosecuted.83 E contrario websites operated in the 46 Arnold also considered and rejected four reasons why
EU or connected by providers in the EU might be the court should exercise its discretion to decline
evaluated differently. the request. First, the order targeting the whole site
would also affect other right holders. This benefit
43 Orders may target the infringing website’s would rather support issuing the order, and further,
connectivity provider, a provider in the middle the incidence of non-infringing uses was considered
of the Internet, or a provider at the user end.84 A de minimis.89 Second, it was immaterial that accepting
contractual relationship between the provider and the request might lead to more requests in the
the website operator exists only in the first case. future.90 Third, ineffectiveness of blocking was not
In the second case, some providers may obtain decisive. Specifically, users will need to acquire
indirect financial gain (through transit agreements additional expertise to circumvent blocking. Even
between providers), but in the third case there is if they were able to do so, it was not clear that the
not even such indirect benefit.85 This study focuses users wished to expend the time and effort. Arnold
on blocking at the user end, because actions against also seemed to rely on advocacy research claiming
infringing customers are in many aspects more that in Italy, the use of The Pirate Bay had been
proportionate, and in any case different from those markedly reduced. All in all, he stated that the order
against a completely third party. would be justified even if it only prevented access
to the site by a minority of users.91 Fourth, Arnold
44 A few interim observations are in order before evaluated proportionality against EHCR in the light
moving on to examine national case law. The rights of L’Oréal v eBay. He held that it was necessary to
to balance in enforcement have been confirmed. protect the right holders’ property rights, and this
However, the evaluation has been rather thin clearly outweighed freedom of expression by the
except for the A.G. opinion on the fourth question users and the connectivity provider, and even more
(unaddressed by the CJEU) in UPC Telekabel Wien. In clearly by the site operator. The order was narrow
all likelihood, in the future courts will mainly issue and targeted, it included safeguards against changes
specific orders. Also, neither the CJEU nor the A.G. of circumstances and the cost of implementation
addressed the required level of efficiency when would be modest and proportionate. He also rejected
constraining a provider’s rights.86 The CJEU’s position the requirement of notifying infringing files by URLs
on the provider’s function to discourage users could as being disproportionate and impracticable for the
possibly be seen as approving the suitability of claimants when the site did not have a substantial
educating the users of the site’s illegality. Finally, the proportion of non-infringing content.92
A.G. made a number of points that the CJEU did not
get a chance to address. He noted that proportionality 47 After the main judgment in Newzbin2, additional
would be affected by the right holder’s possibility of issues on details of the order were raised, some
primarily targeting the infringer or the infringer’s of which may be of relevance here. Arnold found
connectivity provider. Second, effectiveness could
2 122 2014
it proportional to apply the order to all services or costly. He still held that blocking order may be
which use BT’s Cleanfeed, but in essence excluded justified (emphasis added) even if it only prevents
access and wholesale business from blocking. Other access by a minority of users, and that the efficacy
IP addresses and URLs, whose sole or predominant depends on the precise form of the order. For
purpose was to enable or facilitate access to the example, orders in Dramatico Entertainment were
Newzbin2 website, could also be added later to likely less easy to circumvent due to the ability of the
the block list without judicial determination. The right holders to revise the list of blocked resources.
request to allow temporary shutdown of blocking Finally, Arnold noted that evidence indicates that
(e.g. due to operational reasons) without court orders are reasonably effective, again pointing to the
or claimant approval was rejected. The relatively Italian study and the drop of The Pirate Bay in Alexa
modest implementation costs would be borne by site popularity rankings.101 In conclusion, the orders
the connectivity provider, at least in this case. The were deemed necessary and appropriate to protect
legal fees were divided based on the merits of the IPR, and these interests outweighed the freedom of
arguments.93 Later the blocking was also extended expression rights by users, connectivity providers
to other connectivity providers.94 and website operators.102 Since then, blocking
has extended to cover over 40 sites, but no new
48 Blocking of The Pirate Bay was soon to follow in considerations of proportionality have come up.103
Dramatico Entertainment, where it was held that the
users and website operators infringed copyrights 50 Access to FirstRow, a site consisting of user-
of the claimants in the UK. After Newzbin2, the generated streams of sports events, was also
connectivity providers have elected not to actively blocked in a similar manner. The claimant, FAPL,
participate in court proceedings.95 In a subsequent contended that the order would be proportionate
ruling, the injunction was issued on the terms the because 1) the providers do not oppose the order and
claimants had agreed with connectivity providers. implementation costs are modest and proportionate;
Again, Arnold considered the discretion to grant the 2) the orders are necessary to protect copyrights
order. He stated that the proportionality of orders infringed on a large scale and identifying and bringing
must be considered, referring to the principles of the proceedings against the operators of the website
Enforcement Directive and L’Oréal v eBay. While the would be difficult, leaving no other effective remedy
terms of the order may be proportionate between the in this jurisdiction; 3) the orders are necessary or
right holders and connectivity providers, it was the at least desirable to protect sporting objectives in
duty of the court to ensure the proportionality from general; 4) while also foreign content is available,
the perspective of those who are not before the court the vast bulk of content infringes the rights of FAPL;
(in particular, the users). Given that the IP address and 5) the orders are narrow and targeted ones, and
of The Pirate Bay was not shared, blocking it was include safeguards against changes of circumstances.
appropriate.96 Since this judgment, specific terms The orders will also likely be reasonably effective,
of orders have been agreed in advance between the even if not completely efficacious. Arnold did not
claimants and providers, and those have not been object to these grounds.104 FAPL had submitted
described in the ruling or scrutinized by the court.97 evidence that FirstRow’s IP address is not shared,
but this later seemed to turn out to be incorrect,
49 In Emi v Sky, blocking was extended to cover three leading to substantial overblocking.105 Further,
more sites (KAT, HEET and Fenopy). In this case, Arnold added an additional provision to the orders
proportionality was more extensively discussed in introduced earlier by Mann J, so that any website
the light of recent English judgments. Specifically, operator claiming to be affected by the order would
Arnold had established a balancing test of conflicting have permission to apply to vary or discharge it.106
fundamental rights in the context of an order to
disclose identities of subscribers, and it had been
later endorsed by the UK Supreme Court.98 Also, IV. Mixed Approach in
he considered the referral questions posed in UPC
Telekabel Wien. Arnold rather brusquely dismissed
Nordic Countries
the third preliminary question on whether
“prohibition of outcome” would be inappropriate, 51 The Supreme Court of Denmark has issued two
essentially stating that UK courts carefully consider relevant judgments on preliminary injunctive relief.
such matters before any blocking order is made.99 The first judgment in 2006 concerned a file transfer
Arnold also seemed to dismiss the Austrian Supreme (FTP) server and TDC as the connectivity provider
Court’s desire for European uniformity in assessing for that subscriber. Because the injunction would
the proportionality of specific blocking measures have essentially required terminating the Internet
by referring to the context-sensitivity of such connection, it was held that Article 8(3) of the Infosoc
evaluations.100 The cost of compliance was also not Directive requires consideration with balancing of
relevant in the UK context because no connectivity interests.107 In a case concerning blocking users’
provider had resisted making the orders on the access to a website, it was submitted that injunctive
basis that compliance would be unduly burdensome relief should be rejected as ineffective under the
2 123 2014
Pekka Savola
balance of interest requirement, but this claim was seem to be required before a court would take third
denied with reference to obligations of Article 8(3).108 parties into account when balancing interests.116 In
In the second judgment, on blocking The Pirate Bay, Finland, the statute also provides for reasonableness
in the Supreme Court it was mainly argued that the balancing only between the IPR holder, intermediary
requested interim relief was too imprecise and the and infringer.117 These are in stark contrast to the
balance of interest did not favour injunction. This more recent CJEU case law.
was rejected because the court felt the order was
precise enough to be granted, and there would be 55 In Finland, the three largest providers have been
no harm to the connectivity provider in a way which ordered to block access to The Pirate Bay with
would make it disproportionate.109 specific orders to avoid uncertainty for the providers.
Also, specifying and updating the list of blocked
52 In Sweden there have been no court cases on blocking IP addresses and domain names was deemed to
at the user end. One reason may be the Swedish require judicial review. It was acknowledged that all
Copyright Act tying injunctive relief to contributing measures differed with regard to their effectiveness,
to infringement.110 However, a website’s connectivity precision, cost and implementation time. By citing
provider has been ordered to implement blocking. earlier reports, it was held that none of the proposed
In Black Internet, the Svea Court of Appeal upheld technological measures was so ineffective as to
the order to cease providing connectivity to The preclude issuing the order. The efficacy of blocking
Pirate Bay. The provider’s argument was that the could be measured only after implementation. Costs
site also had other connectivity providers, the and harm of the injunction were not unreasonable.118
access prevention would not be effective and the The blocking order affected the providers’ whole
site had been reorganised so that the order would network, and for example the connectivity provided
not be effective. These did not prevent injunctive to other providers or the government could not be
relief, and the balance of interest also favoured excluded.119 It was considered proportionate that the
granting it. Further, the freedom of expression or providers needed to cover their own implementation
other fundamental rights would not be restricted expenses (ca. 10,000 euro) and legal fees (ca. 100,000
in a manner that would violate the ECHR.111 euro) each.120 While the blocking must not endanger
Similarly, in Portlane, a connectivity provider was third parties’ communications, the minor amount
ordered to prevent access to a peer-to-peer tracker of legal content on the website did not prohibit
service “tracker.openbittorrent.com”. The court blocking. Targeting the infringers in Sweden was
noted that the relief was fair and equitable and not also not required by law.121
unnecessarily complicated or costly as required by
the Enforcement Directive.112 Later, Portlane and
other providers were persuaded to stop servicing V. Divergence of Positions in Benelux
The Pirate Bay.113
56 In The Netherlands, summary proceedings to block
53 In Norway, the request to block access to The access to The Pirate Bay failed in July 2010. The judge
Pirate Bay was rejected because providers had no argued that access could only be blocked from those
obligation to remove or block illegal content in the who directly infringe copyrights rather than non-
implementation of Article 12 of the E-Commerce infringing visitors of the site, and that the individual
Directive. Therefore, there was no legal basis infringers should have been targeted first.122
for granting an injunction. In another EEA state,
Iceland, an initial attempt at blocking failed due to 57 In new proceedings, Ziggo and XS4ALL were ordered
the claimants’ procedural error.114 Since the cases to block access to the site, with the right holders
in Norway the Copyright Act has been amended in having authority to update the list as needed. On
this respect, and a blocking request is expected in subsidiarity the claimant had already sued The Pirate
the near future.115 Bay operators and hosting providers, and proceedings
against connectivity providers were appropriate;
54 In Danish and (former) Norwegian statutes, suing users was not needed. On proportionality,
injunctive relief shall not be granted if it would cause given the amount of illegal content on the site, the
harm or inconvenience to the defendant in a manner interests of the copyright holders outweighed those
that would be obviously disproportionate to the of ordinary Internet users. Also the necessity in a
plaintiff’s interest in the injunction. Balancing thus democratic society was briefly addressed. Claims
occurs between the parties. However, because the as to effectiveness of blocking were made, which
court has some discretion, in special circumstances subsequently turned out to be unfounded.123 Other
third-party interests may also be considered, and this providers have also been ordered to block access,
has indirectly happened in case law. In contrast, in but this time the list of sites needed to be updated
Sweden the balance of interests has been developed in in court.124
case law and legal theory. In the two described cases,
third-party interest was not considered. As such, in 58 The first order was overturned on appeal in January
all three countries extraordinary circumstances 2014.125 Based on recent research by the University of
2 124 2014
Amsterdam, the blocking was found to be ineffective, EU Commission had serious doubts about various
particularly if it targeted only one site, because most aspects of the draft regulation.138
of the affected users would just use another website
or circumvent blocking.126 Only the images of art 62 In Germany there is no explicit statutory provision on
works of music albums and video covers and such Article 8(3) of the Infosoc Directive. The alternative
material were found to be infringing, and blocking “Störerhaftung” (disturber) liability imposes a high
access to these was not sufficiently important when bar on these injunctions. A prevailing opinion has
contrasted to the operators’ freedom to conduct a been that the Infosec Directive has been adequately
business.127 It seemed that the court might have implemented, and Störerhaftung is an acceptable
been more amenable if the claimants had requested solution as to “the conditions and modalities”.
blocking more sites at once instead of proceeding Website blocking has also been considered with
step-by-step.128 This would have arguably made strong scepticism. Yet UPC Telekabel Wien may require
blocking more effective. reconsideration through expanding interpretation
of Störerhaftung or legislation.139
59 In Belgium, interlocutory proceedings to block
access to The Pirate Bay also failed in July 2010. 63 The lack of an explicit legal basis and evaluation
Immediate blocking was deemed disproportionate, against Störerhaftung has been adopted in a number
especially since the site had already existed for of cases.140 For example, in the Hamburg Court of
years.129 Blocking a fixed list of 11 domain names Appeals ruling, the legal basis for injunction was
was established in September 2011 on appeal. The deemed insufficient. It was also stated that Article
court held that subsidiarity is not required by Article 8(3) would not require providing for blocking
8(3) of the Infosoc Directive, and the order was injunctions.141 Last, in the Cologne District Court
also proportionate.130 In a different set of cases, in ruling, a request to order a connectivity provider to
criminal investigation against unidentified operators block access to certain URLs in the eDonkey peer-
of The Pirate Bay, all connectivity providers were to-peer networking service was likewise rejected.
ordered to block access to the site in April 2012. This was due to the lack of explicit legal basis,
This was appealed but upheld in February 2013. In Störerhaftung liability not being met, and the lack of
October 2013, the Supreme Court upheld the decision technical capabilities in preventing infringements.
that required providers to stop all current and In consequence, the blocking would have been
future Pirate Bay domain names and monitor them. unreasonable and ineffective due to the small effort
Strangely enough, it was not considered a general of circumventing such measures.142 On the other
monitoring obligation.131 hand, a preliminary injunction has been issued to an
operator providing connectivity to The Pirate Bay.143
VI. Varied or Lack of Action 64 There has been no blocking in Portugal, but a request
to block The Pirate Bay is to be expected.144 In Spain,
in Other EU countries there have been mixed rulings on the legality of
operating peer-to-peer indexing sites such as The
60 In Ireland, a blocking injunction was rejected in 2010 Pirate Bay. A single case of website blocking has been
due to lacking implementation of Article 8(3) of the overturned in appeal due to insufficient grounds.45
Infosoc Directive.132 The law was amended, and six In France, due to the efforts aimed at users through
providers were ordered to block access to The Pirate Hadopi, The Pirate Bay has not been blocked, but
Bay in June 2013.133 A draft order had been agreed in ISPs and search engines have been ordered to block
advance between the parties, though concern with a set of video streaming sites.146 In Greece, only two
overblocking was voiced. The blocking list could music sites have been blocked.147 There has been no
be updated without judicial determination as in news of any blocking activity in Eastern Europe.148
Newzbin2. Providers bore the cost of implementation
and most of their legal expenses. The judge
considered the draft order both proportionate and D. Criteria for Assessing
reasonable.134
Proportionality
61 In Italy the access to The Pirate Bay was blocked for
a while in 2008–2009 as a criminal seizure, then the
blocking was rejected and then again blocked, the I. Overview
latest order being from February 2010.135 There is no
explicit provision to issue connectivity providers a 65 Blocking cases essentially concern four parties,
blocking order in civil proceedings, and the easier each with its own private interests: the IPR holder,
criminal procedure has been used.136 There have also provider, user and website operator.149 The operator’s
been subsequent orders to block other sites.137 At the interests have not usually been considered explicitly,
end of 2013, the law changed so that the regulatory and they are also not in the main focus here.150 Public
authority AGCOM could block sites, though the
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Pekka Savola
interests in the background may also implicitly illegality (as with The Pirate Bay),157 or the court
affect the weight court affords each private interest. issuing blocking does so when the operators have
been served summons, more extensive blocking
66 Proportionality has been considered in case law, may be appropriate. Blocking is always dubious if
though often in a summary fashion. Typically the operators have not been represented and the
it is difficult to even find the criteria used in illegality has not been subject to rigorous analysis.158
the evaluation. The criteria may also have been Proxies that enable circumventing blocking provide
formulated at so high a level (as with most CJEU a problematic example of this.
judgments) that applying them in concreto is
challenging. However, there are also exceptions. 71 Is the intent of blocking to prevent site operators
The A.G. opinion on the fourth, unanswered question from (facilitating) making available copyrighted
in UPC Telekabel Wien is useful, as well as UK cases material,159 blocking access from users as such, or to
Newzbin2 and FAPL v Sky. Also, several recurring prevent users from copying and sharing the material?
themes can be noticed from other national case If illegality cannot be clearly attributed to the site
law. These concern in particular effectiveness (or (e.g. because it at most facilitates infringements by
lack thereof), impact of subsidiarity, effect on the others), the legal basis of blocking the site may be
third parties and implementation costs.151 Further, in doubt. Because accessing the site is not as such
in the literature, comprehensive lists of criteria infringing, the focus should be on preventing the
have been formulated at least by Lodder and van der main infringement, i.e. users downloading and
Meulen,152 Husovec,153 Savola154 and Pihlajarinne.155 sharing material. It might be sufficient to target
These also have many recurring issues, but the blocking only to those users – i.e. consumers – who
interest for brevity precludes detailed discussion of are expected to become infringers, rather than e.g.
each. Various requirements for adequate safeguards wholesale business, companies or the government.160
have also been suggested, but these are less relevant
here.156 72 The scale of infringement also matters as to how
invasive blocking mechanisms may be appropriate.
67 A generic balancing rule, which as such is not yet For example, a site which has essentially no legal
very helpful in concreto, could be formulated as material at all could more easily be blocked as a
follows. The more significant negative economic whole, but this may not be appropriate for a site
impact infringements cause to the IPR holder, which has substantial legal uses or where the
the stronger enforcement mechanisms should illegality is doubtful. Specifically, in some such
be available, and in contrast the more significant cases URL blocking (for example) has been required
negative impact of ordering such blocking needs to instead of blocking the whole site.161 Also, if blocking
be on the other parties. Respectively, the more costs is targeting a site hosted in the EU/EEA, it also seems
or constraints blocking causes to the provider, and relevant to assess whether the site is operating
the more it impacts freedom of information of the legally in the origin state.162
users, the more significant the losses must be to the
IPR holder.
III. Effectiveness
68 In consequence, in the crux are effectiveness and
costs (or burden in general), respectively. If blocking 73 The relevance of ineffectiveness has come up in
is ineffective, it cannot mitigate the economic losses almost every case as well as in the literature.163
of IPR holders; such blocking would only have Users’ and operators’ ease to circumvent blocking,
symbolic value. On the other hand, if blocking is respectively, could be distinguished. The accuracy
cheap, non-intrusive and precise, it usually does and completeness of measures may also be
not have a major immediate impact to providers measured.164 The possibility of revising the blocking
and users. The more intrusive, expensive or vague list already allows taking into account the website
blocking becomes, the stronger its justification and operator’s actions, although blocking proxies would
effectiveness needs to be in order to be proportionate. still be challenging. Overblocking will be discussed
below. Therefore, in practice the effectiveness – or
69 In the following, concrete evaluation criteria are more precisely, circumventability – of blocking from
submitted. Interpretation of these criteria is based the user’s perspective is most relevant.
on the enforcement principles and fundamental
rights. 74 IPR holders have conducted or commissioned
unverifiable advocacy research on the effectiveness
of blocking. For example, Italian or Belgian studies,
II. Degree and Basis of Illegality where effectiveness ranges between 73 and 80%,
have been cited first when requesting blocking
70 The legal basis of blocking, the illegality of the to support its effectiveness. Yet afterwards the
source, has implications on proportionality. If ineffectiveness has been implicitly or explicitly
some other court has already established the argued to justify extending blocking. Alexa ratings
2 126 2014
have also been cited, but those are unreliable as they 76 Blocking with inefficient mechanisms usually results
do not apparently account for those that arrive at from having to resort to a least bad solution. While
the site through non-conventional channels.165 In a more effective mechanism would in principle be
contrast, in a University of Amsterdam study, it desirable, usually one does not exist or must be
was noted that blocking could in theory only affect rejected on other grounds. Therefore, the main
the behaviour of those 27 to 28% of consumers alternative would be to reject the request. As
who download or intend to download from illegal previously noted, it seems easier for courts to accept
sources. Of these infringing consumers, the large inefficiency if a more effective order could not be
majority (70-72%) was found to be non-responsive granted.173
to blocking by finding other ways to access the
same or a different site. There was essentially no 77 Acceptance of inefficient mechanisms therefore
lasting effect, and even the awareness effect wore depends on the associated costs, degree of efficiency,
off quickly. In consequence, blocking affected only and whether using blocking for (somewhat
4 to 6% of all users. Respectively, in another survey ineffective) educational, symbolic or political
Dutch university students were asked if they were purposes is considered legitimate. It is submitted
downloading less illegal material after the blockade that blocking must be at least reasonably effective by
of The Pirate Bay. 13 % of 302 respondents used substantially reducing IPR holders’ economic losses.
only legitimate sources, the rest at least sometimes Otherwise, it would be reduced to a symbolic gesture,
downloaded from illegal sources: 39 % used The a useless attempt to educate users, or as a political
Pirate Bay and 48 % used other sources. Of The power play in the field of legal policy.174
Pirate Bay users, 66 % used various techniques to
bypass blocking, 18 % did not even notice blocking,
and 17 % no longer had access to the site. Only 22 % IV. Negative Burden
of its users told they now downloaded less from the
site. Because some downloaded more, statististically 78 With blocking, the IPR holder shifts the burden of
blocking had no discernible impact on the amount enforcement to third parties, i.e. providers.175 For
of infringement. 166 Connectivity providers have also providers, this implies implementation cost and
similarly observed no significant impact on traffic expenses for legal services. In all the reviewed
levels. This is also supported by an intuitive finding cases, the cost of implementation has been
that those who are already aware of the site (say, borne by providers, even if this is not required
“The Pirate Bay”) can just enter the name in a search by EU legislation.176 Given that costs have been
engine and obtain the list of proxy services on the modest, at most 10,000 euro for a large provider,
first page of results.167 these are only important in principle.177 On the
other hand, requiring the installation of a URL-
75 It is obvious that blocking may affect some users, blocking mechanism (for example) would likely
especially the ones who are not already familiar with be disproportionate.178 Providers likely fear the
the sites and arrive at the site by web references expansion of mechanisms and costs. Arnold J and
or by searching for specific content.168 Equally the A.G. anticipated this and noted that there may
obvious is that blocking will not affect those regular be reasons to cover some or all costs in the future.179
users who know sites by name, and will continue
using them or the alternatives through other, 79 Given that blocking furthers the IPR holder’s
essentially equally easy means (e.g. proxies). This private interest, and the IPR holder is also the sole
is exacerbated by the fact that infringing users are beneficiary, it would not seem unreasonable for it to
more knowledgeable and determined than users cover all costs.180 This would guide it to do a rigorous
on average.169 In consequence, blocking seems to assessment of which blocking would be economically
– at most – accomplish a slight deterrence against justified. This might also allow adopting more
some non-recurring users, provide “education” to efficient yet costlier means.
those users,170 and make it seem that IPR holders
are doing something. It seems obvious that almost 80 However, to date, implementation costs have been
everyone downloading or sharing from clearly dwarfed by 10 to 30 times larger legal expenses. It
notable unauthorized sources is aware of its would be disproportionate to require the provider
illegality. In consequence, education as a goal seems also to bear the claimants’ costs if an order is granted.
difficult to justify.171 Indeed, the reasoning that This applies in particular to countries where the
users do not bother or will forgo accessing the site provider is not even legally allowed to implement
when encountering a block seems to apply at most blocking without court approval.181 Likewise, if
with non-recurring users.172 Therefore, the A.G.’s the provider makes good arguments in court and
justification for ineffective blocking as deterrence the claimant’s request is restricted, the provider’s
is questionable. As will be discussed in the context of costs should also be compensated.182 An appropriate
legitimacy below, it is not obvious that subordinating default might be that both parties bear their own
providers to such a task is proportionate, especially costs if the blocking order is granted essentially as
if it incurs expenses. requested.
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Pekka Savola
81 Other burdens may also be relevant because the burdensome, ineffective, the infringer is operating
order will restrict how the provider is able to use its in EU, there has been no attempt to target him/
resources.183 The order may also require reducing the her or to disconnect the site and/or the illegality
security and reliability of the network.184 Likewise, is suspect. On the other hand, if there is evidence
there may be limits (usually hundreds or thousands that the website has repeatedly changed providers
of entries) of blocked targets until the provider faces (as with The Pirate Bay) or the administrators are
a serious performance penalty. In consequence, anonymous and difficult to identify,193 addressing
there may also be an issue of scalability if the number the issue at the user end might be more easily
of blocking entries grows significantly.185 proportionate.
82 Usually blocking orders have been ordered without

a time limit. This imposes restrictions on the VI. Avoiding Collateral Damage
provider because as a matter of business, services
(e.g. BT’s Cleanfeed and equivalents) might need to 86 The CJEU has emphasised the importance
be replaced or retired. Blocking orders should not of freedom of information, and the A.G. also
restrict innovation and maintenance of services.186 underlined its necessity for democracy and
Also, even if the site disappears, blocking will stay supporting the provider’s legitimate business.194
in place until the order is discharged. In that case, Legal communications in particular must not be
the blocking might unduly affect the new user of “unnecessarily” disturbed.195 This implies that a
(in particular) IP addresses. It would be appropriate minor disturbance might be acceptable in some
for the order to have a fixed time limit of two to circumstances; one example might be a site that
five years, but renewable as need be with a simple has a small fraction of legal content. However, it is
substantiated request.187 Alternatively, the IPR holder difficult to conceive of a scenario where overblocking
could have the obligation to apply for discharging – i.e. blocking affecting unrelated sites – would be
or varying the order if circumstances change or acceptable. This comes up (and has come up) in
face liability for potential damages.188 These would particular with IP address blocking. For example,
hopefully ensure that the list of blocked sites will Arnold J has noted in two UK blocking cases that
contain only relevant and up-to-date entries. IP address blocking would not be appropriate if the
address was shared.196
83 The impact of this kind of burden must be accounted
for, though admittedly the potential technical and 87 While overblocking has not yet caused significant
innovation implications may be difficult to qualify. problems with the top infringing sites, the ever-
expanding blocking implies that this would become
a problem. Specifically, for example, proxy sites
V. Subsidiarity and less significant websites will most likely almost
always use a shared IP address. Thus IP address-
84 The issue of addressing the infringement at its source based blocking would be excluded. On the other
has been a recurring theme in national case law as hand, more detailed forms of blocking (e.g. URL
well as in the literature. While the CJEU confirmed blocking) might be unavailable, and more generic
that the connectivity provider at the user end may be ones such as DNS blocking might suffer from other
issued a blocking order, it is not always necessarily problems. Given the crudeness of the website
best placed to end or prevent infringement.189 In blocking as a tool, the result may be that blocking
contrast to subscriber identification requests that would be disproportionate.
the CJEU referred to, the user end provider is not
the only provider that could implement blocking. 88 Another difficult-to-qualify issue, as already touched
Further, the A.G. opined that as a consideration of on in the context of burdens, concerns the technical,
proportionality, if possible, primarily the infringer or architectural and security implications of blocking
infringer’s provider should be targeted. This might mechanisms, among others. All blocking mechanisms
be the case in particular if an upstream provider is have their problems. DNS blocking undermines the
located in the EU.190 It must also be observed that security of the Internet by decreasing trust in domain
Article 8(2) of the Infosoc Directive does not require name lookup services. IP blocking is simple, yet it
Member States to provide for injunction (against has a risk of overblocking if not used with caution.
infringers), except when infringement occurs on its There is also a danger of permanent blocking orders
territory.191 While wider protection may be provided, hindering innovation as some addresses cannot be
this portrays the general principle that in some cases recycled to new uses due to lingering blocking orders
it is not unreasonable to require that the IPR holder all over Europe. URL blocking may be expensive and
pursues the case abroad.192 it is incompatible with secure web connections. All of
these might cause collateral damage through specific
85 All of this seems to indicate that subsidiarity does problems or as unreliability in general.197
have some role in evaluating proportionality. This
is underlined especially if the measures would be
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E. Proportionality Evaluation seemed to overestimate the suitability of blocking as

a deterring and educational mechanism.201
93 The University of Amsterdam study202 and other

I. Legitimacy of the Objective public studies confirmed that the anticipated
efficacy of deterring and also educating users is
89 The objective might be construed as IPR protection too optimistic. In the survey, 71% of infringing
in such a manner that it does not disproportionately users reported that they did not intend to decrease
affect other rights. Prima facie this could be accepted or stop their infringing behaviour; after blocking,
as legitimate as is, but closer examination reveals 77% continued (similar and even more pessimistic
doubts on the ultimate goal of blocking. figures were found in other Dutch studies). This
was one of the grounds for the Appeals Court
90 The general goal of blocking would seem to be rejection of blocking in The Netherlands. It raised
protecting the private interests of IPR holders.198 The an issue, however: would an order be more easily
political motives of IPR holders include strengthening proportionate if the IPR holder requested extensive
the position against other parties, obtaining ever blocking at once? The court rejected proceeding
more effective enforcement mechanisms, and being with a step-by-step approach, which perforce is
seen to be doing something. The latter is essential more ineffective than blocking more sites at once.
to legitimise the existence of central copyright The court seemed to think “yes”, but it is not clear
organisations to the actual copyright holders, if this was a fair assessment given that The Pirate
as well as to affect public opinion that “piracy” Bay was only a test case.203 On the other hand, a
cannot be tolerated. On the other hand, the more step-by-step approach demonstrates IPR holders’
concrete motive would be to decrease the amount rhetorical twists: first it is claimed that blocking is
of infringement to regain some “lost” sales. effective and as such the request should be granted,
and later insufficient effectiveness is used to argue
91 The crucial question is which and to which degree
for extending blocking.204
these underlying motives of blocking can be
accepted as legitimate. Specifically, are enforcement 94 What is deemed to be the legitimate goal of
mechanisms (especially at intermediaries’ expense) blocking affects the evaluation of effectiveness
available only for efficient enforcement that and subsidiarity in suitability analysis. If symbolic
produces economically quantifiable results?199 Or is gestures, education or politics are accepted, even
blocking also acceptable for educational, symbolic completely ineffective means could be deemed
or politically motivated gestures?200 There is likely appropriate, assuming that the negative impact
no single right answer to this because the symbolic on providers and users is minimal. If the goal is to
value of copyright enforcement is also tied to the make a significant impact on sharing and reduce the
public interests, with varied valuations. However, economic loss of IPR holders, a much higher degree
at least using enforcement to enhance your own of effectiveness may be required. The scale also tilts
political agenda at others’ expense must be rejected. towards higher requirements if the negative impact
on others increases. For example, Arnold J seemed to
accept blocking even if it only affected a minority of
II. Suitability for the Purpose users.205 This might be suspect unless a broad notion
of the goals of blocking is adopted.
92 The Advocate General suggested that, in general,
specific blocking is not inappropriate for the purpose
of furthering the aim of protecting the IPR holder’s III. Necessity: What Is the Least
rights. This was essentially based on a belief that
many users would forgo accessing the site and would Restrictive Means?
not bother to search for it because finding a way to
access the material would become significantly more 95 Necessity concerns whether there are better means
difficult. These also seemed to rest on an uneasy of achieving the objective. With the objective of
assumption that users would not be familiar with preventing infringements, targeting the infringer
the illegality of the site, and blocking would have (if possible) or infringer’s provider (especially if
an educational purpose, affecting users’ behaviour. located in the EU, unless the operator has already
This displays naiveté or undue optimism. Almost switched providers multiple times) would be
everybody seems to know that downloading and preferable to a patchwork of step-by-step blocking
especially sharing is illegal; clearly “illegal sites” are separately in all Member States. Blocking at the user
typically also identifiable as such. Most infringers end incurs much higher costs overall in the form
are likely recurring users who are not affected either of implementation costs and legal expenses than
by blocking or such subtle forms of education. Also, addressing the problem at its source.206 The necessity
as demonstrated, searching is also trivial, and the to try alternative means first, if at all possible, was
increase in deterrence is minimal. As such, the A.G. also underlined in the A.G. opinion in UPC Telekabel
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Pekka Savola
Wien. This is more important in particular if the cost 100 As was already observed by Norrgård in 2005, the
and burden for the provider or the impact on users’ Enforcement Directive affords a national judge wide
freedom of expression is not minimal. discretion in how strong an enforcement model is
adopted. It is submitted that by using these criteria,
96 Again, if the objective of blocking is deemed to (also) it would be possible to untangle the Gordian Knot of
be symbolic, educational or political, there may proportionality evaluation and make more reasoned,
not be much better means. It is in the IPR holder’s nuanced and explicit decisions. Too little attention
interest to increase the duties and responsibilities has also been given to the different interpretative
of intermediaries irrespective of efficacy. Further, contexts (infringer vs intermediary) of enforcement
blocking appears to be the second- or third-best principles.
solution to educating the users, with graduated
response probably being preferable; there seems to 101 Blocking has not been requested in most EU
be a mixed reaction to the relatively expensive and, countries. This is likely due to strategic choices of
in PR terms, uncertain trend to sue the users.207 On major national IPR holders and associations: e.g.
the other hand, deploying ineffective mechanisms unsatisfactory benefit compared to the expenses.
may also result in ridicule, especially from infringing On the other hand, with reasoned judgments the
website operators. It would be a much more powerful UK has been in the forefront of blocking. Different
message from IPR holders to pursue infringers aspects of discretion and proportionality have also
directly. been considered in many UK rulings, even if on
most issues there has not been detailed scrutiny.
The appropriateness of blocking, even if impacting
IV. Proportionality: Weighing the only the minority, hinted at particular regard for the
symbolic value of copyright enforcement; this was
Burden against the Objective also observable from Ireland.
97 Criteria and their impact have already been 102 Case law from Scandinavian countries provides an
discussed. Here only a general observation is made. example of how proportionality has traditionally
As has already come up repeatedly, the goal of been assessed mainly between the parties in
blocking as perceived and accepted by a court doing proceedings – a model which is now insufficient.
a proportionality evaluation incurs implications Finland is an example of a country that adopted
on the level of accepted proportionality. This is in a very strict interpretation on establishing and
particular the case with ineffective measures that updating the blocking list through judicial review
do not cause significant costs or burden to the only. Norway and several other countries such as
provider or the users. With a stricter focus on the Germany also demonstrated the rejection of requests
economically quantifiable results – that is, proof when Article 8(3) of the Infosoc Directive was not
that blocking significantly reduces the losses by IPR explicitly transposed. Belgium was atypical in the
holders – ineffective mechanisms might be more sense that both criminal and civil proceedings were
easily rejected. used. Criminal proceedings resulted in probably the
most extensive blocking and a related monitoring
98 One point is worthy of noting, however. The obligation in Europe, closely followed by criminal
effectiveness or lack thereof in a particular country proceedings in Italy.
or context can be measured only (and even then with
difficulty) after blocking has been implemented. 103 In contrast, a Court of Appeals decision in
Erring on the side of restraint, however, might the Netherlands was striking. It adopted an
cause the issues to be addressed at higher courts or unconventional and restricted interpretation of
referred to the CJEU. This might also allow (or force) the illegality of the site, and rejected blocking in a
the IPR holder to conduct more rigorous studies of proportionality evaluation due to ineffectiveness as
effectiveness in other countries.208 demonstrated by public research.209 It remains to
be seen if this will be considered an anomaly and
overturned in the Supreme Court or CJEU, or if this
F. Conclusions will be a sign of a new kind of critical movement in
European case law.
99 IPR holders, intermediaries, users and website
operators each have very different interests, and 104 As was seen, the key point in proportionality
satisfying all of them is obviously impossible. As CJEU analysis is establishing which goals in blocking are
case law provides only very high-level guidance, five accepted. Blocking may be portrayed as a technical
interrelated criteria for assessing proportionality measure aimed at reducing the economic losses
were formulated: degree and basis of illegality, from infringement by increasing sales. Legitimacy
effectiveness, negative burden, subsidiarity and of this objective requires substantial impact and
avoiding collateral damage. effectiveness. On the other hand, if it is accepted
that IPR holders have a legitimate aim to try to use
2 130 2014
connectivity providers (at their own expense) to “Proportionality in EU Law: A Balancing Act?”, 15 CYELS
perform vain attempts at educating users, or to make (2013) 439, p. 448; Stone Sweet – Mathews, “Proportionality
Balancing and Global Constitutionalism”, 47 CJTL (2008) 72,
symbolic gestures or political moves to increase
p. 75.
their own power, inefficient mechanisms might be
8 See e.g. Ibid; Craig – de Búrca, EU Law: Text, Cases and Materials
considered more easily acceptable as well. While (OUP, 5th ed. 2011), p. 526; Harbo, “The Function of the
the national case law from various EU countries has Proportionality Principle in EU Law”, 16 ELJ (2010) 158, p. 165.
suggested that the latter justification has also been 9 Websites have typically been held to infringe copyrights in
implied to some degree, it is submitted that a critical almost all countries. See Savola, “Blocking Injunctions and
assessment is needed before embarking on that path. Website Operator’s Liability for Copyright Infringement for
User-Generated Links”, 36 EIPR (2014) 279. Feiler (n 3, pp. 67–
* Lic.Sc.(Tech.), Master of Laws, LL.D. candidate. 69, 71) sees a potential for market fragmentation and creating
barriers to legitimate trade.
Legal Counsel at CSC–IT Center for Science Ltd,
Researcher at University of Helsinki, Finland, and 10 See generally e.g. Sarmiento, “Who’s afraid of the charter?
The Court of Justice, national courts and the new framework
part-time expert member on IPR issues in Market
of fundamental rights protection in Europe”, 50 CML Rev.
Court. The author likes to to thank in particular (2013) 1267, pp. 1294–1295.
Taina Pihlajarinne, Martin Husovec, Simon Morrison 11 By analogy, see Husovec (n 3), paras. 7–8; Peukert “The
and Cedric Manara for discussions and feedback. Fundamental Right to (Intellectual) Property and the
Discretion of the Legislature”, Goethe Institüt Frankfurt am
1 See e.g. Van Eecke, “Online service providers and liability: Main Faculty of Law research paper 7/2013, also forthcoming
A plea for a balanced approach”, 48 CML Rev. (2011) 1455, in Geiger (ed.), Human Rights and Intellectual Property: From
pp. 1461, 1497–1501; Kohl, “The rise and rise of online Concepts to Practice (Edward Elgar, 2014), p. 3.
intermediaries in the governance of the Internet and beyond
12 See e.g. Case C-314/12, UPC Telekabel Wien, judgment of 27
– connectivity intermediaries”, 26 IRLCT (2012) 185, pp. 192–
Mar. 2014, nyr, para. 47; Case C-70/10, Scarlet Extended, [2011]
193, 200. See also Bright – Agustina, “Mediating Surveillance:
ECR I-11959, paras. 45–46, 50–53. In addition, the typically
The Developing Landscape of European Online Copyright
neglected website operator’s rights – for example, the right
Enforcement”, 9 J Contemporary European Research (2013)
to fair trial, freedom of expression and freedom to conduct
120, pp. 122–124; Lodder – van der Meulen, “Evaluation of the
a business – are also relevant. See Husovec (n 3), paras. 33–
Role of Access Providers: Discussion of Dutch Pirate Bay Case
38. More generally on IPR protection and its relation to
Law and Introducing Principles on Directness, Effectiveness,
fundamental rights, see e.g. Griffiths, “Constitutionalising
Costs, Relevance, and Time”, 4 JIPITEC (2013) 130, paras. 3, 5,
or harmonising? The Court of Justice, the right to property
10, 57; Montero – Van Enis, “Enabling freedom of expression in
and European copyright law”, 28 ELR (2013) 65; Peukert,
light of filtering measures imposed on Internet intermediaries:
“Intellectual Property as an End in Itself?”, 33 EIPR (2011), 67;
Squaring the circle?”, 27 CLSR (2011) 21, p. 22.
Geiger, “Intellectual Property Shall be Protected!? Article 17(2)
2 A blocking order is just one of the many possible mechanisms of the Charter of Fundamental Rights of the European Union:
an IPR holder may use. See e.g. Edwards, Role and Responsibility A Mysterious Provision with an Unclear Scope”, 31 EIPR (2009)
of the Internet Intermediaries in the Field of Copyright (WIPO study, 113, Mylly, “Intellectual property and fundamental rights: Do
2011). they interoperate?” in Bruun (ed.), Intellectual Property Beyond
3 Husovec, “Injunctions against Innocent Third Parties: The Rights (WSOY, 2005) 185, pp. 206–207.
Case of Website Blocking”, 4 JIPITEC (2013) 116, paras. 1, 18, 13 See e.g. Sandfeld Jacobsen – Salung Petersen (n 3), pp. 176–180;
24; Sandfeld Jacobsen – Salung Petersen, “Injunctions against Geiger – Izuymenko, ”Copyright on the Human Rights’ Trial:
mere conduit of information protected by copyright: A Redefining the Boundaries of Exclusivity Through Freedom
Scandinavian perspective”, 42 IIC (2011) 151; Feiler, “Website of Expression”, 45 IIC (2014) 316; Jones, “Internet Pirates
Blocking Injunctions under EU and U.S. Copyright Law – Walk the Plank with Article 10 kept at Bay: Neij and Sunde
Slow Death of the Global Internet or Emergence of the Rule Kolmisoppi v Sweden”, 35 EIPR (2013) 695; ECtHR Kolmisoppi v
of National Copyright Law?” TTLF Working Papers 13, 2012, Sweden, Appl. No. 40397/12, decision of 19 Feb. 2013, 4 EHRLR
pp. 45–46. (2013) 425. On blocking, see cases listed in note 73. Cf. Peukert
4 Arts 12–15 of E-Commerce Directive, Directive 2000/31/EC (n 11), pp. 4–6, 10 (criticising both CJEU and ECtHR for the
of the European Parliament and of the Council of 8 June 2000 lack of normative criteria, weighting without a scale and
on certain legal aspects of information society services, in unforeseeability, and also that limitations require justification
particular electronic commerce, in the Internal Market. O.J. rather than balancing).
2000, L 178/1. See also Van Eecke (n 1), p. 1464. 14 For a critique of the CJEU’s succinct reasoning, see e.g. Mylly
5 Kohl (n 1), pp. 186, 190–191, 193; Husovec (n 3), para. 25; Feiler (n 12), pp. 210–213; Griffiths (n 12), pp. 74, 76–78; Peukert (n
(n 3), pp. 71–73; Bright – Agustina (n 1), pp. 123–124, 131. See 11), p. 4.
also Savola, “The Ultimate Copyright Shopping Opportunity: 15 Directive 2001/29/EC of the European Parliament and of
Jurisdiction and Choice of Law in Website Blocking the Council of 22 May 2001 on the harmonisation of certain
Injunctions”, 45 IIC (2014) 287. Generally on governments’ aspects of copyright and related rights in the information
control of Internet, see Goldsmith – Wu, Who Controls the society. O.J. 2001, L 167/10.
Internet? Illusions of a Borderless World (OUP, 2006), pp. 65–85.
16 Corrigendum to the Directive 2004/48/EC of the European
6 Van Eecke (n 1), p. 1465; Kohl (n 1), p. 191; Blevins, “Uncertainty Parliament and of the Council of 29 April 2004 on the
as Enforcement Mechanism: The New Expansion of Secondary enforcement of intellectual property rights. O.J. 2004, L
Copyright Liability to Internet Platforms”, 34 Cardozo L 195/16. The former Article governs interlocutory injunctions,
Rev (2013) 1821; Senftleben, “Breathing Space for Cloud- the latter injunctions awarded after infringement has been
Based Business Models: Exploring the Matrix of Copyright established in court. The Infosoc Directive does not explicitly
Limitations, Safe Harbours and Injunctions”, 4 JIPITEC (2013) require interlocutory injunctions; see Leistner, “Structural
87, para. 6; Montero – Van Enis (n 1), pp. 28–29. aspects of secondary (provider) liability in Europe”, 9 JIPLP
7 See e.g. Pirker, Proportionality Analysis and Models of Judicial (2014) 75, p. 76. The Enforcement Directive explicitly notes
Review (Europa Law Publishing, 2013), p. 16; Sauter,
2 131 2014
Pekka Savola
that injunctions are ordered by a judicial authority, while Providers) – The German Approach”, 2 JIPITEC (2011) 37. Cf.
“injunction” seems to imply that also in the Infosoc Directive. Leistner (n 16, pp. 88–89) who seems to consider the violation
17 Articles 12–14 of E-Commerce Directive; Husovec (n 3), paras. of reasonable duties of care to prevent infringements a
4–6. significant European factor and standard for providers’
secondary liability. His discussion seems to have an implicit
18 On these differences, see Opinion in L’Oréal v eBay, paras. 138–
hosting provider focus.
146, correctly questioning applying the liability exemptions
of connectivity providers to hosting providers in Joined cases 32 Last part of Article 14(3) of E-Commerce Directive. See Van
C-236–238/08, Google France, [2010] ECR I-2417, paras. 113–114. Eecke (n 1), pp. 1484–1485.
Also see Van Eecke (n 1), pp. 1481–1483. 33 L’Oréal v eBay (n 23), paras. 139, 141.
19 Recitals 42–44 and Art 12 of E-Commerce Directive. 34 Gema v Rapidshare (BGH I ZR 80/12), Atari v Rapidshare (BGH I
20 Recital 46 and Art 14 of E-Commerce Directive. ZR 18/11). See Gärtner – Jauch, “GEMA v RapidShare: German
Federal Supreme Court extends monitoring obligations for
21 For a summary, see references in Savola (n 9), p. 285. This
online file hosting providers”, 36 EIPR (2014) 197, pp. 198–
will have impact in a proportionality evaluation. See also
199; Ginsburg, “Take Down/Stay Down: RIP in France? But
e.g. Matulionyte – Lankauskas, “Bittorrent Loses Again: A
Little Solace for Google...”, Intellectual property issues, The
Recent Lithuanian BitTorrent Case and What It Means for the
Media Institute (6.8.2012). Cf. Opinion in L’Oréal v eBay (n 23),
Construction of E-commerce Directive”, 4 JIPITEC (2013) 179;
paras. 166–168, 178–182, which suggested a double identity
Dimita, “Six Characters in Search of Infringement: Potential
requirement for preventing future infringements: that a
Liability for Creating, Downloading and Disseminating
person could be prevented from repeating infringement of
.Torrent Files’“, 7 JIPLP (2012) 466.
a specific trademark. This was not explicitly addressed by
22 On reinterpretation of neutrality to imply awareness, see the CJEU, but the restrictions seemed to point towards that
note 18. direction; see Van Eecke (n 1), pp. 1477–1478. On potential
23 Case C-324/09, L’Oréal v eBay, [2011] ECR I-6011, paras. 120– issues of “stay down” orders, see ibid., pp. 1479–1480.
123. Van Eecke’s reading of this is that any diligent economic 35 Scarlet Extended (n 12), para. 43, affirmed in UPC Telekabel Wien
operator should have been able to note the illegality, implying (n 12), para. 61. Also similarly in Opinion in UPC Telekabel Wien,
a threshold slightly lower than “manifestly illegal content” paras. 75–76, 79–81. For an earlier discussion, see e.g. Mylly
(n 1, p. 1467). For similar earlier trends, see Verbiest et al., (n 12), p. 200.
“Study on the Liability of Internet Intermediaries”, Final
36 See e.g. Feiler (n 3), pp. 74–75. One way to answer this
report (Markt/2006/09/E) of 12 Nov. 2007, pp. 36–47.
is to conclude that rights are in some cases practically
24 Cf. Rizzuto, “The liability of online intermediary service unenforceable. Alternatively, it must be evaluated whether
providers for infringements of intellectual property rights”, the extension to enforcement is justified. See Husovec (n 3),
18 CTLR (2012) 4, pp. 13–14, submits the opposite argument para. 26.
by generalization and analogous interpretation. For the
37 UPC Telekabel Wien (n 12), paras. 54, 57.
stated reasons, this seems unconvincing. Indeed, since the
E-Commerce Directive, there have been few serious claims 38 Opinion in UPC Telekabel Wien (n 12), paras. 66, 81–86, 88. This
(and no rulings) to establish a connectivity provider’s liability was also submitted by the Commission.
for transmitted information. 39 While Art 8(1) requires effective, providing and dissuasive
25 Similarly in Newzbin2 [2011] EWHC 1981 (Ch), para. 145. sanctions against infringers (emphasis added), these do not
apply to faultless intermediaries.
26 Such duties exist in close to 10 EU states, for example,
Belgium and Italy. See Verbiest et al. (n 23), pp. 72–73. At 40 Cf. a case on trademark infringement, in which the A.G. did
least in Italy, failure to comply has also led to finding the not see that EU law would impose any specific requirements
connectivity provider liable. See Bellan, “Intellectual Property beyond efficacy, dissuasiveness and proportionality required
Liability of Consumers, Facilitators and Intermediaries: The by Article 3(2). Opinion in L’Oréal v eBay (n 23), para. 180.
Position in Italy” in Heath – Kamperman Sanders (eds.), 41 See Recital 17 of Enforcement Directive on case-by-case
Consumers, Facilitators, and Intermediaries: IP Infringers or Innocent consideration.
Bystanders? (Kluwer Law International, 2012) 87, pp. 92, 96–97. 42 The interpretations have been taken mainly from Scarlet
27 Recital 47 and Art 15(1) of E-Commerce Directive. Art 18 also Extended (n 12). For example, “not unnecessarily costly
requires providing court measures “designed to terminate any or complicated” could also be construed to mean that the
alleged infringement and to prevent any further impairment procedure should be easy and cheap for the right holder.
of the interests involved”. See Montero – Van Enis (n 1), pp. Similarly, it could be argued that it would be disproportionate
28–29. An example of “specific monitoring” is a targeted, for the right holder to be denied an injunction. On the other
temporary request to tackle a specific illegal activity. See hand, the “effectiveness” requirement could also be read in
ibid., p. 30 footnote 69. a negative fashion (see Feiler (n 3), pp. 61–62). That is, non-
28 Recital 45 and Arts 12(3), 13(3), and 14(3) of E-Commerce effective mechanisms must be rejected. A positive and widely
Directive. accepted reading seems to be that effective mechanisms
should be provided, but ineffective ones are also acceptable
29 This might re-ignite debate on which generic orders
(maius includit minus). Likewise, “no barrier to legitimate
would constitute a monitoring obligation. See Husovec,
trade” could also be construed to imply reluctance against
“CJEU Allowed Website Blocking Injunctions With Some
intra-EU market fragmentation by imposing requirements
Reservations” 9 JIPLP (2014) 631, p. 634.
to website operators in all jurisdictions. See Feiler (n 3), pp.
30 Opinion in UPC Telekabel Wien (n 12), para. 78. The A.G. did 68–69 and note 9.
note that if the connectivity provider needed to search for
43 See also Norrgård, “The Role Conferred on the National Judge
duplicate DNS entries for the same site, this would amount
by Directive 2004/48/EC on the Enforcement of Intellectual
to forbidden monitoring.
Property Rights”, ERA Forum 4/2005 at 503, p. 506.
31 Recital 48 of E-Commerce Directive. These also cannot
44 Norrgård (n 43), pp. 507–511.
amount to general monitoring but rather refer to notification
systems, for example. See Montero – Van Enis (n 1), p. 29. 45 Norrgård (n 43), pp. 511–514.
Also, see generally e.g. Nordemann, “Liability for Copyright 46 Ohly, “Three principles of European IP enforcement law:
Infringements on the Internet: Host Providers (Content Effectiveness, proportionality, dissuasiveness”, prepublication
2 132 2014
version of article published in Drexl et al. (eds.), Technology guidance was provided. It would have been crucial for a
and Competition, Contributions in honour of Hanns Ullrich (Larcier, proportionality evaluation.
2009), pp. 7–8, 11, 15. 65 Ibid., para. 46. The CJEU referred to Promusicae (n 56); also see
47 Cf. Headdon, “Beyond liability: On the availability and scope Coudert – Werkers, “In The Aftermath of the Promusicae Case:
of injunctions against online intermediaries after L’Oreal v How to Strike the Balance?”, 18 IJLIT (2008) 50.
eBay”, 34 EIPR (2012) 137, p. 139, seems to implicitly accept 66 UPC Telekabel Wien (n 12), para. 47. A.G. had opined (paras.
dissuasiveness with respect to intermediaries, interpreting 94–98) on the Charter, limitations and the rights at issue in
it as being in contempt of the court for disobeying the court much the same manner. It is notable that users’ right to data
order. protection was not at issue, as with Scarlet Extended (n 12),
48 Opinion in L’Oréal v eBay (n 23), paras. 176–177. paras. 50–51, 53.
49 Norrgård (n 43), p. 514. Actually, Norrgård lists only four 67 UPC Telekabel Wien (n 12), paras. 48–51. This latter means that
types of infringers (and not third parties at all) as imposing injunctions are not completely forbidden, merely restricted.
considerations for the context. The omission is striking and 68 Ibid., paras. 52–53. A.G. had opined (paras. 84–86) that
calls for a specific reminder of third-party scenarios. “prohibition of outcome” would not be compatible with the
50 For examples, see Husovec (n 3), paras. 15–19. fair balance requirement, as it might require the use of very
51 In particular, according to the German Constitutional Court complicated mechanisms, and the intensity of interference
(1 BvL 3/08), a preliminary reference to the CJEU is required with a provider’s fundamental rights varied. Prevention could
if a national court needs to determine the exact scope of also be impossible.
discretion of the Member State implementing EU law. See 69 Ibid., para. 54. The A.G. had opined (paras. 87–88) that a
Sarmiento (n 10), p. 1301 fn 128. defence at the execution stage would be incompliant, because
52 For more examples, see e.g. Verbiest et al. (n 23), pp. 53–56. the provider does not know which actions it must perform.
Similarly in L’Oréal v eBay (n 23), the A.G. had opined (para. 181)
53 Further details are provided in this and a number of
that it is crucial that the intermediary can know for certain
subsections.
what is required of it, and that the injunction does not impose
54 This is the case at least in the UK, Ireland, The Netherlands, impossible, disproportionate or illegal duties like the general
Belgium and Austria. monitoring obligation.
55 Feiler (n 3), pp. 27–30. Generally on IPR injunctions in Member 70 See Savola, “Website blocking in copyright injunctions:
States, see European Observatory on Counterfeiting and A further perspective” (28.3.2014), <http://the1709blog.
Piracy, “Injunctions in Intellectual Property Rights” (2011), blogspot.fi/2014/03/website-blocking-in-copyright.html>.
<http://ec.europa.eu/internal_market/iprenforcement/ Alternatively, this would imply orders which specify, for the
docs/injunctions_en.pdf> (Observatory Report). avoidance of doubt, a sufficient implementation as in the early
56 There have also been cases which relate to Internet UK injunctions; see Newzbin2 (No 2) [2011] EWHC 2714 (Ch),
connectivity providers and also discussed proportionality, but para. 56.
where the context has been inter alia disclosing the subscriber 71 Opinion in UPC Telekabel Wien (n 12), paras. 88–89. Intrusive
whose IP address was used in copyright infringement. It is means could also incur significant expenses to the provider.
not necessary or possible to discuss these in detail. See
72 UPC Telekabel Wien (n 12), paras. 55-56. The A.G. also
Case C-275/06, Promusicae, [2008] ECR I-271,Case C-557/07,
emphasised (para. 82) that blocking (emphasis added) actually
LSG v Tele2, [2009] ECR I-1227, Case C-461/10, Bonnier Audio,
affects infringing material and there is no danger of blocking
judgment of 19 Apr. 2012, nyr, and Joined cases C-293/12 and
access to lawful material. “Actually affects” could be read to
C-594/12, Digital Rights Ireland, judgment of 8 Apr. 2014, nyr.
disallow ineffective or misdirected means.
57 L’Oréal v eBay (n 23), paras. 134, 139–144. The criteria
73 ECtHR Yildirim v Turkey, Appl. No. 3111/10, judgment of 18 Dec.
established in Google France (n 18) were apparently superseded
2012, paras. 65–69. In contrast, in Akdeniz v Turkey, Appl. No.
in L’Oréal v eBay.
20877/10, inadmissibility decision of 11 Mar. 2014, an Internet
58 In another case, a social media site benefited from the Article user was deemed not to be a ‘victim’ of website blocking.
14 defence. The judgment was essentially identical to Scarlet
74 UPC Telekabel Wien (n 12), para. 57. This may be unattractive
Extended (n 12), so it is not necessary to cover it here. See Case
for national courts; see Savola (n 70).
C-360/12, NETLOG, judgment of 16 Feb. 2012, nyr.
75 As will be seen, in some countries such a review has not been
59 Scarlet Extended (n 12), para. 40. Because such an injunction is
conducted or it has been superficial.
prohibited, it is not clear why the CJEU continued to consider
the fundamental rights balance at all. The CJEU possibly 76 Ibid., paras. 58–61. Indeed, on impossibility, see section B.IV.
wanted to provide for criteria for evaluation for subsequent 77 Ibid., para. 62.
cases instead of just addressing the issue at hand. 78 Ibid., para. 63.
60 Scarlet Extended (n 12), paras. 44, 48–49. Also see Kulk – 79 Opinion in UPC Telekabel Wien (n 12), paras. 99–102. This “users
Zuiderveen Borgesius, “Filtering for Copyright Enforcement will not bother” argument is similar to the one used by Arnold
in Europe after the Sabam Cases”, 34 EIPR (2012) 791. J; see notes 91 and 101 and accompanying text.
61 Scarlet Extended (n 12), paras. 50–52. 80 Ibid., paras. 103–108.
62 The Opinion in Scarlet Extended is of less relevance. The key 81 UPC Telekabel Wien (n 12), paras. 34–35. Notably here the
point was the argument that the national law was vague and context differs from a connectivity provider ordered to reveal
broad, and could be used to issue essentially arbitrary orders. the identity of the subscriber using an IP address, as with the
The quality of the law as required by fundamental rights referred (para. 32) LSG v Tele (n 56), para. 44. In that case, there
limitations should prevent issuing such orders. This aspect is only one provider having the required information; here,
was not addressed in the CJEU judgment. See e.g. Van Eecke blocking can be implemented by others as well, and it is a
(n 1), pp. 1494–1495; Husovec (n 3), paras. 40–41. matter of convenience and other considerations.
63 UPC Telekabel Wien (n 12), paras. 54–62. 82 UPC Telekabel Wien (n 12), paras. 34–35; A.G. Opinion, paras.
64 The unfortunate side-effect was that the answer to the fourth 58, 107.
question on specific orders was not given and no explicit 83 Opinion in UPC Telekabel Wien (n 12), para. 57. Similarly, Lodder
and van der Meulen (n 1, para. 71) suggest that the problem
2 133 2014
Pekka Savola
should be addressed at its source and only as the last resort 99 Emi v Sky (n 98), paras. 7, 95–97.
on the user end. While injunctions may be ordered without 100 Ibid., paras. 99–100.
prejudice to the other actions available to the right holder
101 Ibid., paras. 102–106. As will be discussed, the more important
(Recital 59 of Infosoc Directive, and respectively, Recital 23
feature of efficacy is users’, not operators’, possibility to
of Enforcement Directive), the novel part is taking this into
circumvent blocking. Also, there was no critical assessment
account in the proportionality evaluation. Subsidiarity has
of the methodology or bias of these measurements.
been applied at least in France and The Netherlands. On the
other hand, some courts in e.g. Germany and Belgium have 102 Ibid., para. 107. Again, freedom to conduct a business was not
held that such a subsidiarity requirement does not exist in specifically addressed.
Article 8(3) of the Infosoc Directive. See Feiler (n 3), pp. 47– 103 See e.g. Paramount v Sky [2013] EWHC 3479 (Ch), para.
52; Van Eecke (n 1), p. 1490; Verbiest et al. (n 23), pp. 49–50. 42. The number of blocked sites appears to be around
84 See Savola (n 5) pp. 305, 312; Feiler (n 3), p. 53. 40 as of this writing. See e.g. TorrentFreak, “UK Piracy
Blocklist Expands With Megashare, Viooz, Watch32
85 IPR holders have typically claimed that the user end provider
and Zmovie” (11.3.2014), <http://torrentfreak.com/
benefits, e.g. due to increased demand for high-speed
megashare-viooz-watch32-zmovie-blocked-140311/>.
connectivity. This is not obvious. Typically the provider’s
own audio-visual additional services suffer, and high-volume 104 FAPL v Sky [2013] EWHC 2058 (Ch), para. 55. It is notable,
users that use disproportionate amount of capacity are not however, that there is no requirement to provide an effective
ideal customers. remedy in the jurisdiction of the claimant’s choosing.
86 For example, in the UK it has been held that affecting even 105 FAPL v Sky (n 104), para. 56; “Premier League piracy fight
a “minority” of users is sufficient; see notes 91 and 101 and brings down Radio Times site” (15.8.2013, World IP Review),
corresponding text. <http://www.worldipreview.com/news/premier-league-
piracy-fight-brings-down-radio-times-site>. Also in Dramatico
87 Newzbin2 (n 25), paras. 43, 151. Cf. Newzbin [2010] EWHC 608
Entertainment (No 2) (n 92), para. 13, Arnold J stated that
(Ch), paras. 133–135 where Kitchin J was more hesitant and
blocking an IP address was only appropriate when it is not
did not initially grant a broader injunction.
shared with anyone else.
88 Newzbin2 (n 25), paras. 157 ff.
106 FAPL v Sky (n 104), paras. 57–58.
89 Ibid., paras. 185–186.
107 TDC, Supreme Court decision of 10.2.2006 (59/2005). See
90 Ibid., paras. 189–190. Cf. Schellekens, “Liability of internet Sandfeld Jacobsen – Salung Petersen (n 3), pp. 159–160.
intermediaries: A slippery slope?” 8 SCRIPT-ed (2011) 154.
108 Allofmp3.com, Copenhagen City Court decision of 25.10.2006
91 Newzbin2 (n 25), paras. 194, 197–198. For a critique of the (F1-15124/2006). See Sandfeld Jacobsen – Salung Petersen (n
research, see note 101. 3), pp. 161–162; Verbiest et al. (n 23), p. 57.
92 Ibid., paras. 199–201. In this case, BT’s Cleanfeed system would 109 Telenor, Supreme Court decision of 27.5.2010 (153/2009). See
also have supported URL blocking. In a later ruling, Arnold J Sandfeld Jacobsen – Salung Petersen (n 3), pp. 162–163.
also noted that the final Scarlet Extended judgment would not
110 Swedish Copyright Act, Section 53 b. Preparatory materials
have made any difference to his consideration. See Dramatico
explicitly stated that operating the network does not as such
Entertainment (No 2) [2012] EWHC 1152 (Ch), para. 8.
constitute contributory infringement and that injunctions
93 Newzbin2 (No 2) (n 70). It is somewhat strange that an of Article 8(3) are not always available in this context. See
operational requirement of doing emergency service Sandfeld Jacobsen – Salung Petersen (n 3), pp. 156–157, 164,
maintenance to the system was rejected. 167, 170; Verbiest et al. (n 23), p. 53.
94 See references in Dramatico Entertainment [2012] EWHC 268 111 Black Internet, Svea Court of Appeal decision of 21.5.2010
(Ch), paras. 3–4. (Ö 7131-09 and Ö 8773-09) . See Sandfeld Jacobsen – Salung
95 Ibid., para. 7 and below Emi v Sky (n 98), para. 90; Paramount Petersen (n 3), pp. 163–164.
v Sky (n 103), para. 3. Reasons may be saving legal expenses, 112 Portlane, Svea Court of Appeal decision of 21.5.2010 (Ö 10146-
adopting a neutral stance in order to avoid having to 09). See Sandfeld Jacobsen – Salung Petersen (n 3), pp. 164–165.
reimburse claimants’ legal fees, and emphasising that it is
113 See TorrentFreak, “Pirate Bay Bandwidth Supplier
not their role to argue for the users and the website but the
Disconnected, But the Ship Sails On” (13.2.2013), <http://
court’s. On saving costs, see Senfleben (n 6), para. 67.
torrentfreak.com/pirate-bay-bandwidth-supplier-
96 Dramatico Entertainment (No 2) (n 92). disconnected-but-the-ship-sails-on-130221/>.
97 Ibid., para. 13. This approach could be questioned from 114 Telenor, Borgarting Court of Appeal decision of 9.2.2010
the perspective of guarding the interests of parties not (10-00654ASK-BORG/04). See Sandfeld Jacobsen – Salung
represented in the proceedings. Petersen (n 3), pp. 165–167; Manner – Flythstrom, “Bonnier
98 Emi v Sky [2013] EWHC 379 (Ch), paras. 91–93, referring to Amigo Music Norway AS v Telenor ASA – another flag in
Golden Eye [2012] EWHC 723 (Ch), para. 117: “... That approach the Pirate Bay – internet service provider not responsible
is as follows: (i) neither Article as such has precedence over for blocking Bittorrent file sharing services in Norway”, 21
the other; (ii) where the values under the two Articles are EntLR (2010) 237, pp. 239–240. On Iceland, see TorrentFreak,
in conflict, an intense focus on the comparative importance ”Pirate Bay Blockade Dismissed by Icelandic Supreme Court”
of the specific rights being claimed in the individual case (3.5.2014). <http://torrentfreak.com/pirate-bay-blockade-
is necessary; (iii) the justifications for interfering with or dismissed-by-icelandic-supreme-court-140503/>. The
restricting each right must be taken into account; (iv) finally, substance was not evaluated and therefore it is not listed in
the proportionality test – or ‘ultimate balancing test’ - must the table.
be applied to each.” On these developments, including Golden 115 See e.g. TorrentFreak, “Anti-Piracy Group Will Use New Law
Eye [2012] EWCA Civ 1740, see Hyland, “The seductive interface to Block The Pirate Bay” (24.7.2013). <http://torrentfreak.
between adult entertainment and Norwich Pharmacal relief”, com/anti-piracy-group-will-use-new-law-to-block-the-
18 Comms L (2013) 56; Daly, “Is there an entitlement to pirate-bay-130724/>.
anonymity? A European and international analysis”, 35 EIPR
116 Sandfeld Jacobsen – Salung Petersen (n 3), pp. 171–172.
(2013) 198. Arnold’s test is essentially similar to the balancing
considered here, except it lacks an explicit suitability and 117 However, there is a separate provision on not disturbing
necessity part. third parties, so the lack of “users” here seems irrelevant.
2 134 2014
An amendment to add users (and make a number of other 135 Supreme Court decision of 23.12.2009 (49437/09);
revisions) is in progress, however. TorrentFreak, “Supreme Court Opens Door For Pirate Bay
118 Elisa, Helsinki Court of Appeals decision of 15.6.2012 (S Block” (1.10.2009), <http://torrentfreak.com/supreme-court-
11/3097), Supreme Court denied leave to appeal on 29.10.2012; opens-door-for-pirate-bay-block-091001/>; Rinaldi, “Italian
DNA, Helsinki Court of Appeals decision of 8.2.2013 (S 12/1850); Supreme Court explains reasons for ordering blocking of
TeliaSonera Finland, Helsinki Court of Appeals decision of Swedish Pirate Bay website” (10.5.2010), <http://www.
11.2.2013 (S 12/2223). All court of appeals decisions upheld twobirds.com/en/news/articles/2012/italian-supreme-
Helsinki district court decisions, though in the Elisa case (p. court-blocking-swedish-pirate-bay-website-050510>; Bellan
21) with a tightened precision of orders. Only the first lower (n 26), pp. 107–108; Feiler (n 3), p. 26.
court decision has been elaborated in English; see Norrgård, 136 Bellan (n 26), pp. 91, 97; Verbiest et al. (n 23), p. 54.
“Blocking Web Sites – Experiences from Finland” in Axhamn 137 See e.g. TorrentFreak, “Italian Court Orders ISPs To Block
(ed.), Copyright in a Borderless Online Environment (Norstedts Several Major Torrent Sites” (17.10.2013), <http://torrentfreak.
Juridik, 2012) 171. The most extensive commentary in Finnish com/court-orders-isps-to-block-several-major-torrent-
is Savola, Copyright Injunctions against Internet Connectivity sites-131017/>. Also as a rejection of blocking the whole site
Providers Especially with Regard to Peer-to-peer Networking (Aalto instead of infringing URL, see TorrentFreak, “Court Orders
University Licentiate Thesis, 2013). ISPs to Unblock ‘Pirate’ Site” (3.4.2014), <http://torrentfreak.
119 By adopting Cleanfeed, some of these were excluded in com/court-orders-isps-to-unblock-pirate-site-140403/>.
Newzbin2 (n 25); see note 93 and corresponding text. Savola 138 EDRi, “Italian authority gets the power to block websites”
has submitted (n 5) that blocking international transit (18.12.2013), <https://edri.org/italian-telecom-authority-
communications would likely be inappropriate, and as such gets-power-block-websites/>; Rosati, “BREAKING NEWS: EU
the wording was too broad. Commission had serious doubts about Italian Communication
120 DNA (n 118), pp. 1, 8–9. In contrast, in The Netherlands, the Authority draft online copyright enforcement regulation”
expenses for two providers were 326,000 euro (n 125). (15.1.2014), <http://the1709blog.blogspot.com/2014/01/
121 Elisa (n 118), pp. 17–18. breaking-news-eu-commission-had-serious.html>.
122 Ziggo, District Court of The Hague, 19.7.2010 (KG ZA 10-573). 139 See Hoeren – Yankova, “The liability of internet intermediaries
See Lodder – van der Meulen (n 1), paras. 31–34; Feiler (n 3), – the German perspective”, 43 IIC (2012) 501, pp. 517–518;
p. 28. Verbiest et al. (n 23), pp. 54–55. Cf. Hoeren on German law
misconceiving the goals of EU legislation in Angelopoulos,
123 Ziggo and XS4ALL, District Court of The Hague, 11.1.2012 (HA
“Beyond the safe harbours: Harmonising substantive
ZA 10-3184). See Lodder – van der Meulen (n 1), paras. 35–42.
intermediary liability for copyright infringement in Europe”,
124 UPC etc., District Court of the Hague, 10.5.2012 (KG ZA 12-156). (2013) IPQ 253, p. 269 fn 123; Observatory Report (n 55), pp.
See Lodder – van der Meulen (n 1), paras. 43–44. NB. the case (PDF page numbers) 10, 24. Generally on Störerhaftung
number there is incorrect. liability, see e.g. Leistner (n 16), pp. 78–81; Angelopoulos, pp.
125 Ziggo and XS4ALL, The Hague Court of Appeals ruling of 266–270.
28.1.2014 (200.105.418-01). An appeal to the Supreme Court 140 Deutsche Telecom, Hamburg District Court decision of 12.3.2010
is pending. (308 O 640/08), para. 42; Feiler (n 3), p. 27.
126 Poort et al., “Baywatch: Two approaches to measure the 141 G-Stream.in, Hamburg Court of Appeals decision of 22.12.2010
effects of blocking access to the Pirate Bay”, 38 Telecom Policy (5 U 36/09); Feiler (n 3), p. 27.
(2014) 383; Ziggo and XS4ALL (n 125), paras. 5:17–5:22. Previous
142 Hansenet, Cologne District Court decision of 31.8.2011 (28 O
versions of research were available during court proceedings.
362/10), paras. 115–122. See Feiler (n 3), pp. 26–27.
127 Ibid., paras. 5:25–5:26. The alternative ground that the
143 CB3ROB, District Court of Hamburg decision of 6.5.2010 (310
providers were obliged to act against their infringing
O 154/10).
customers in this manner was also rejected (paras. 6:1–6:2).
144 TorrentFreak, “Portugal Next in Line to Block The
128 Ibid., paras. 5:23–5:24.
Pirate Bay” (26.9.2013), <http://torrentfreak.com/
129 Telenet and Belgacom, Antwerp Commercial Court, 8.7.2010 portugal-next-in-line-to-block-the-pirate-bay-130926/>.
(A/10/05374). See TorrentFreak, “ISP’s Don’t Have to
145 Bright – Agustina (n 1), pp. 129–130; TorrentFreak, “Website
Block The Pirate Bay, Court Rules” (10.7.2010), http://
Blocking Law Implemented by New Spanish Government”
torrentfreak.com/isps-dont-have-to-block-the-pirate-bay-
(2.1.2012), <http://torrentfreak.com/website-blocking-law-
court-rules-100710/ This justification did not preclude issuing
implemented-by-new-spanish-government-120102/>. Cf.
preliminary blocking orders in Finland; see note 118.
TorrentFreak, ”Court Jails Torrent Site Owner and Issues Three
130 Antwerp Court of Appeal, 26.9.2011 (2011/8314). The court Year Website Work Ban” (8.11.2013). <http://torrentfreak.
rejected IP-address-based blocking due to its greater potential com/court-jails-torrent-site-owner-and-issues- three-year-
for over-blocking. website-work-ban-131108/>. TorrentFreak, ”’Pirate’ Site ISP
131 Van Bael – Bellis, “Belgian Supreme Court Confirms Order Blockades Reversed by Court (17.7.2014). <http://torrentfreak.
Obliging Internet Providers To Block Access To Pirate Bay com/pirate-site-isp-blockades-reversed-by-court-140717/>. It
Websites” (20.12.2013), http://bit.ly/1uF4bPn. Cf. confusing is reported that the judge deemed that there were insufficient
the ruling to be related to the earlier cases; see TorrentFreak, grounds for blocking ”especially when it is not absolutely
“Court Orders ISPs to Police the Internet for Pirate Bay Proxies” necessary for the continuation of the investigation. For earlier
(20.11.2013), <http://torrentfreak.com/court-orders-isps-to- discussion of injunctions, see Verbiest et al. (n 23), pp. 49, 59.
police-the-internet-for-pirate-bay-proxies-131120/>. 146 See e.g. Liard – Hainsdorf, “French Courts Ordered to Block
132 EMI v UPC [2010] IEHC 377, paras. 133–134. Earlier ex-tempore and Delist 16 Streaming Websites” (10.1.2014), <http://www.
judgment, EMI v Eircom [2009] IEHC 108, where the blocking whitecase.com/articles-01102014/>. Allostreaming, TGI Paris
had been granted, was here admitted to have been wrong; see decision of 28.11.2013 (11/60013). Website blocking after
EMI v UPC, paras. 136–137. meeting the requirement of subsidiarity should be possible,
133 UPC etc. [2013] IEHC 274. however. See Verbiest et al. (n 23), p. 54.
134 Ibid., paras. 5–8, 21. 147 Grammo v Internet Service Providers, Protodikeio (16.5.2012), see
44 IIC (2013) 468; TorrentFreak, “Court Orders ISP Blockades
of ‘Pirate’ Music Sites” (21.5.2012), <http://torrentfreak.
2 135 2014
Pekka Savola
com/greek-court-orders-isp-blockades-of-pirate-music- 162 See note 9. Husovec (n 3, paras. 37–39) notes that website
sites-120521/>. blocking as a substitute for proceedings against infringers
148 In Slovakia and Czech Republic, injunctions against might lead to abusive or inappropriate use of blocking, citing
intermediaries are not possible due to the lack of legal basis. an example of blocking a Spanish “HomeLifeSpain.com” site
See Observatory Report (n 55), pp. 10–11, 24–25. in Denmark due to allegations of trademark violation.
149 See section B.IV and in particular the table therein. 163 For example, Lodder and van der Meulen (n 1, para. 72)
suggest that symbolic or insignificant mechanisms should not
150 It is submitted that the court must consider the absent
be used, but that normally means could be used when costs
operator’s rights (to some degree) on its own motion; see
are not disproportionate. Pihlajarinne (n 155, pp. 135–136)
Husovec (n 3), paras. 33–38.
observes optimism in effectiveness and converting wilfully
151 Other recurring themes include specificity of the order, the infringing users to legal consumers, and (p. 145) that due to
procedure for updating the blocking list, and applicability of unavoidable negative externalities, sufficient effectiveness
interlocutory injunctions, but these are less relevant from a should be required. Husovec (n 3, paras. 27–29) calls for
proportionality perspective. evaluation using the so-called Kaldor Hicks improvement test.
152 In slightly different words, six criteria were submitted: 1) 164 On users’ and operators’ possibilities to evade the blocking, see
subsidiarity, 2) effectiveness, 3) costs, 4) expansion of existing Savola (n 118), pp. 99–106 and Opinion in UPC Telekabel Wien
means, 5) duration and reactive/preventive nature and 6) (n 12), para. 99. On distinguishing accuracy and completeness
various adequate safeguards. See Lodder – van der Meulen (in information theory, “precision” and “recall”, respectively),
(n 1), paras. 70–76, 79. see Savola (n 118), pp. 106–108.
153 Husovec (n 3, paras. 27–50) does not specifically propose 165 See e.g. note 101 and corresponding text. On further critical
criteria for proportionality, but some guidelines can be analysis, see note 167.
gleaned from general observations: 1) effectiveness, 2) method
166 Poort et al. (n 126), pp. 387, 391. Wesselingh et al., ”To Block
of implementation, 3) collateral damage to innovation, 4)
or Not to Block?” (Work in progress, 4.6.2014). <http://ssrn.
operator’s right to fair trial, 5) abusive use, 6) legality of
com/abstract=2273453> (also citing another University of
blocking (out-of-court private agreements), 7) degree of
Amsterdam study, where no significant measurable effect on
illegality, 8) subsidiarity and 9) shifting of costs.
infringement was discerned). Cf. IFPI, “Digital Music Report
154 Considerations are 1) the goal of blocking and targeting, 2) 2014”, <http://www.ifpi.org/downloads/Digital-Music-
effectiveness and suitability, 3) impact on users and third Report-2014.pdf>, p. 41, claim an 11% reduction of peer-to-
party communications, 4) subsidiarity i.e. alternatives and peer traffic in EU countries where blocking has been adopted,
5) costs and other burdens. These were initially submitted in contrast to a 15% increase in others. It is not possible to
in Savola (n 118), pp. 183–199, and further refined in evaluate the reliability of such claims.
Savola, “Internet connectivity provider and fundamental
167 See e.g. Savola (n 118), pp. 104, 112–117. Also IFPI (n 166, p. 42)
rights” in Lohi (ed.), Oikeustiede–Jurisprudentia XLVI:2013
claims that 74% of consumers are introduced to pirate services
(Suomalainen Lakimiesyhdistys, 2013) 127, pp. 195–199.
through search. This was based on research commissioned
155 In the conflict between users and IPR holders: 1) preventive/ by the IPR holder organization MPAA, see MilwardBrown
reactive nature, 2) impact on legal material, 3) IPR holder’s Digital: ”Understanding the Role of Search in Online
financial losses, 4) the extent of material and means, 5) Piracy” (17.9.2013). <http://www.mpaa.org/wp-content/
subsidiarity and 6) communications of political or societal uploads/2014/03/Understanding-the-role-of-search-in-
nature. Between provider and IPR holder: 1) IPR holder’s online-piracy.pdf>, p. 8. Only domain names (”navigational
financial losses and subsidiarity, 2) burden on the provider searches”) rather than other keywords were used 37% of
and 3) specific characteristics of the service. See Pihlajarinne, time for first visits and 46% for repeated visits (p. 9). The
Internetvälittäjä ja tekijänoikeuden loukkaus (Lakimiesliiton study is questionable because a visit to the site within 20
Kustannus, 2012), pp. 51–61, 140–148. minutes of search is considered a success, and a sharp drop
156 See e.g. Lodder – van der Meulen (n 1), para. 76; Husovec (n was noticed the shorter the time was (p. 12). Even a minute
3), paras. 37–40. of delay would seem like a long time and only a fraction of
157 This was done in Sweden. However, it is worth noting that the these searches were actually successful. In contrast, using
site has changed slightly since then. For example, instead of a different methodology, another study found only a ca.
torrent files, it’s serving only “magnet links”, i.e. it is even one 20% impact of search. See Computer & Communications
step further from the infringing act. See note 21. In contrast, Industry Association, “The Search Fixation: Infringement,
in the Netherlands, only the artworks on the site were held to Search Results and Online Content” (5.8.2013), <http://
be infringing. See note 127 and corresponding text. www.ccianet.org/wp-content/uploads/2013/08/CCIA_
TheSearchFixation.pdf>. Further, according to a study, 2% of
158 Examples of analysis are the UK injunctions in Dramatico Internet users committed 74% of all infringement, see Ofcom,
Entertainment (No 2) (n 92), and FAPL v Sky (n 104). Some of the ”High volume infringers analysis report” (11.9.2013), <http://
grounds could also be contested, however. See Angelopoulos stakeholders.ofcom.org.uk/market-data-research/other/
(n 139), p. 257; Savola (n 9), p. 286. telecoms-research/high-volume-infringers/>. These users
159 On finding website operators liable, even though the site does are obviously not deterred by any mechanism. Other sources
not have any infringing content, see Savola (n 9), p. 285. On the of entry include for example social media sites. Nonetheless,
inapplicability of hosting defences, also see note 21. in this kind of use of navigational search by typically recurring
160 See Savola (n 118), pp. 170–173, 179–181. users, the percentage is likely somewhere between 20% to
50%. However, there is not much that can be done about it.
161 For example, in Newzbin2 (n 25), Arnold J noted that URL
Completely censoring such generic phrases would seem to
blocking might have been appropriate if the site had
infringe on the very substance of the freedom of expression.
substantial legal uses (n 92). The A.G. in his Opinion in UPC
Telekabel Wien (n 12), was also sensitive to this by referring 168 This was measured by a CCIA report (n 167), and the impact
to Yildirim v Turkey (n 73), where blocking the whole Google seemed rather modest.
Sites site to block one site violated Article 10 ECHR in various 169 Pihlajarinne (n 155), p. 135. On high-volume infringers, see
ways. For example, Rome Court of Appeals rejected blocking Ofcom (n 167).
the whole site (n 137). 170 It is suspect whether blocking could even in the best case
educate users, given that access blocking is not necessarily
2 136 2014
accompanied by any clear message. For novice users, this is users’ interests. In practice this may call for legal evaluation
likely indistinguishable from an Internet connectivity or site and participation in the proceedings.
failure. For recurring users, this has no educational value. 182 There are some signs of this at least in the UK and Ireland. In
171 For example, courts have held that the illegality of The the UK, BT was reimbursed costs during refining the orders
Pirate Bay should be obvious to the users merely through until 16 December 2010, but BT’s futile “all-out opposition”
its name; see e.g. Elisa (n 118), p. 17. Pihlajarinne (n 155, pp. resulted in it having to compensate subsequent IPR holders’
135–136) also rejects blocking as an educational signal, noting costs; see Newzbin2 (No 2) (n 70), paras. 53–55. In Ireland, one
that users are very well aware of the illegal nature of the of the defendants that actively participated in drafting the
site and it is optimistic to assume that they would convert order was compensated costs based on agreement with the
to using legal sources. Hargreaves, “Digital Opportunity: A claimants; see UPC etc. (n 133), paras. 19–22.
Review of Intellectual Property and Growth” (May 2011), 183 On the CJEU’s stance on the impact to business freedom, see
<http://www.ipo.gov.uk/ipreview-finalreport.pdf>, pp. notes 67–68 and corresponding text.
78–79, also cites reports from an education campaign from
184 For example, DNS blocking increases the likelihood of users
2009 that 69% of average users understood the illegality of
using less secure DNS resolvers, potentially leading to security
downloading after watching an educational advertisement.
problems or preventing the use of secure DNS extensions.
In contrast (p. 68), a 2010 study found that 44% of peer-to-
This was also one of the reasons why the so-called SOPA/
peer users believed their actions to be lawful. On the other
PIPA proposals failed. As a summary, see Savola (n 118), pp.
hand, in a recent Finnish Gallup poll commissioned by IPR
87–88. There are similar constraints with respect to other
holders from 2013, 83% of respondents said that downloading
mechanisms.
music or movies from unauthorized sources is illegal,
and respectively 94% said the same for sharing music or 185 Savola (n 118), p. 78.
movies. A majority of them had done both regardless. See 186 UPC Telekabel Wien (n 12), para. 51.
Tekijänoikeusbarometri 2013, <http://www.kulttuuriuutiset. 187 This may be compared to industrial property rights regimes
net/gallupit/piratismitutkimus_2013/>. While these are which include renewable terms that weed out those
somewhat contradictory, it seems obvious that the illegality registrations that were later found out to be useless. On the
of sites is indeed known, but respecting the rights is a different requirement of regular re-assessment of preventive actions,
question. see Lodder – van der Meulen (n 1), paras. 75, 79.
172 See note 79 and corresponding text. Likewise Arnold J had 188 This makes more sense than imposing a monitoring duty on
similar arguments on blocking increasing the “transaction the provider or a third party, who have no knowledge and no
costs” of using a site; see note 91 and corresponding text. A reason to obtain knowledge of such changes.
similar argument and reference to blocking being “educational
and helpful” can be found in EMI v UPC (n 132), para. 134. 189 See note 83 and corresponding text.
173 On interpretations of the effectiveness principle, see note 190 See notes 80–83 and corresponding text. Again, as the CJEU did
42. A different reading of the “effectiveness” requirement is not address the fourth question, it is impossible to conclude
also possible: ineffective and merely symbolic means do not if it would have endorsed the A.G.’s opinion on the impact on
strike a fair balance. proportionality.
174 Savola (n 154), p. 198. 191 In the review of the Enforcement Directive, the Commission
has stated that “[a]ny amendments should have as their
175 Husovec (n 3), para. 47. objective tackling the infringements at their source and, to
176 In Newzbin2 (No 2) (n 70), paras. 30–34, the estimate for that end, foster cooperation of intermediaries [...]”. At least
implementation costs was quoted (in the same ballpark as in de lege ferenda there appears to be a priority to address
in Finland), and Arnold J noted that the distribution of costs the problems at their source. See COM(2011) 287 final, p. 19,
is a national modality, and read “not excessively costly” as “A Single Market for Intellectual Property Rights Boosting
implying that the provider needs to cover the cost of carrying creativity and innovation to provide economic growth, high
the Internet connectivity business. Other interpretations are quality jobs and first class products and services in Europe”.
also possible: that if costs are due, they must not be excessive; 192 National courts seem reluctant to reject requests, however,
or IPR holder’s costs must not be excessive. See also Husovec and in essence state “go seek an injunction in a court closer to
(n 3), para. 49. the source”. For extensive discussion of international aspects,
177 The principal opposition likely stems from the fear of see Savola (n 5).
expanding and extending blocking once “the genie is out of 193 Within EU it might also be possible to request a court order
the bottle” and subjugating providers to the role of active for the infringer’s ISP to disclose subscriber identification
web enforcers. See e.g. Schellekens (n 90). It has also been information that relates to the anonymous website operator.
submitted that when implementation costs are minimal, it is
not a good sole argument for rejecting blocking, and that it 194 On CJEU see note 72 and on A.G., note 79.
is easier to require blocking more sites once the provider has 195 However, according to ECtHR, even illegal communications
been subjected to blocking the first time. See Lodder – van enjoy freedom of expression subject to proportionate
der Meulen (n 1), paras. 73–74. limitations. See note 13.
178 Feiler (n 3), p. 60. 196 See note 105. Similarly see Feiler (n 3), p. 57.
179 The A.G. opined that proportionality might require that e.g. 197 See e.g. Savola (n 118), pp. 87–88, 91–93, 115–117; Husovec
in some repeated cases IPR holders might be ordered to pay (n 3), para. 30.
costs (n 80); Arnold J in Newzbin2 (No 2) (n 70), also made a 198 Further, it could be argued that this would incentivise the
reservation that costs might be ordered in the future; see creation of new works and foster culture (as a public interest),
note 93. but this has been disputed; see e.g. Patry, How to Fix Copyright
180 Similarly on shifting business risks and liability to the (OUP, 2011), pp. 14–27, 77–78; Hargreaves (n 171), pp. 75–76.
provider, see Pihlajarinne (n 155), p. 147; Husovec (n 3), paras. 199 On difficulties of quantifying the impact of infringement, see
47–50. e.g. Hargreaves (n 171), pp. 72–76. Also, it is not obvious if
181 This is exacerbated by UPC Telekabel Wien (n 12) holding that stronger enforcement measures have reduced piracy (ibid.,
providers may also be responsible for taking into account the pp. 77–78). Careful tracking and assessing the impact of
enforcement and educational initiatives was also deemed
2 137 2014
Pekka Savola
important (ibid., p. 81). Notably, emphasising enforcement

as an alternative to improved licensing and modernisation
of copyright law was flat-out rejected (ibid.).
200 It is unclear if CJEU’s statement on “seriously discouraging”
accessing the site could be read to accept educational
purposes.
201 See discussion and references in notes 169–172 and
corresponding text.
202 See note 166 and corresponding text.
203 See notes 125–128 and corresponding text.
204 If blocking was indeed as effective as the best claims made
of it, expansion might not be worthwhile. See Savola (n 118),
pp. 112–113.
205 See notes 91 and 101 corresponding text. Arnold likely referred
to the minority of infringing users. Likewise, Charleton J felt
that blocking would be educational and helpful. See note 172.
206 It can be estimated that both providers and IPR holders have
used at least 5 million euro in Europe on legal expenses in
trying to block The Pirate Bay alone. This estimate is based on
the number of countries, ISPs and the proceedings involved
when the cost for one provider for one proceedings through
appeals instances has been reported (where the information
is available) to run at ca. 100,000 to 300,000 euro (see eg. note
120). It seems obvious that such expenses cannot be motivated
by blocking (or resistance thereto) just one site, but both
parties have more general agenda.
207 In EMI v UPC (n 132), para. 62, a reference was made to an
attempt to educate the public with campaigns. The impact of
reducing infringements lasted for only several months before
returning to the previous level. As noted in the context of
the research of blocking, there appears to be no evidence to
suggest that attempts to educate already cognisant persons
with inefficient blocking is any more useful. A key difference
is that it shifts some expenses and responsibility to providers.
208 Unfortunately, such measurements and research are also
often biased, so it may be of limited usefulness, especially
if the connectivity provider does not wish to expend its
resources to fighting it.
209 This has also been the only case where detailed public
research has been notably part of the proceedings. In
some other cases, this could also have made a difference.
2 138 2014
Social Networking Sites’ Terms of Use

Addressing Imbalances in the User-Provider Relationship
through Ex Ante and Ex Post Mechanisms*
by Ellen Wauters, Eva Lievens & Peggy Valcke, Interdisciplinary Centre for Law & ICT (ICRI) – KU Leuven – iMinds
© 2014 Ellen Wauters, Eva Lievens & Peggy Valcke
Recommended citation: Ellen Wauters, Eva Lievens & Peggy Valcke, Social Networking Sites’ Terms of Use: Addressing
Imbalances in the User-Provider Relationship through Ex Ante and Ex Post Mechanisms 5 (2014) JIPITEC 139, para 1.
2 Aside from issues regarding the lack of awareness

A. Introduction and understanding of ToU, an analysis of several
provisions of ToU of SNS has shown that there is
1 Legislative instruments that impose information cause to be concerned about the imbalance of rights
obligations on market actors when offering products and responsibilities between the SNS provider and
and services or closing transactions with users its users.1 It is likely that certain clauses (e.g. with
currently exist at various levels and in different regard to the transfer of copyright or exemption of
sectors. The idea underpinning these legal obligations liability) will not be upheld before European courts,
is that informed users or consumers will make the based on consumer protection arguments (e.g.
right choices, and by doing so, will serve not only because they “cause[…] a significant imbalance in the
their own personal interests, but also promote wider parties’ rights and obligations arising under the contract,
public policy objectives (healthy food, green energy, to the detriment of the consumer”; Article 3 of the Unfair
safe investments, privacy-friendly information Terms Directive).
services, etc.). However, the idea of an informed
user does not take into account the heterogeneity of 3 On the basis of contract or consumer rights
the users nor individual preferences or behavioural legislation, users may challenge an SNS provider
constraints. This finding is reflected in the Terms in court when they feel that their rights are
of Use (ToU) of a Social Network Site (SNS), which being violated. However, a single user will often
are meant to inform the user about the rights and not be inclined to start a procedure because such
responsibilities that membership of such a network procedures are time-consuming and expensive.
entails. Research suggests that these ToU are rarely Also, consumer claims often have a small value in
read by users before agreeing to them. Also, even comparison to the resources of the companies that
if users were to actually read the ToU, they would they want to bring to court. Hence, the imbalance
probably not be able to correctly assess the possible between the effort and cost and the result will often
implications of these documents. Despite their legal discourage consumers from starting judicial action.
duty to draft contract terms in plain and intelligible It is therefore the aim of this paper to assess how this
language, or obtain “informed” consent for the situation can be remedied. We will examine whether
processing of personal data, market actors continue an ex post remedy such as the use of collective redress
publishing highly unattractive and complex terms mechanisms may provide a solution for consumers
of service or privacy policies which rarely take or users who want to act upon certain consequences
into consideration the various needs and rights of of the imbalanced ToU of SNS providers. Next to this
different types of users. judicial option, we will assesses whether we can
consider a new manner of establishing standard
2 139 2014
Ellen Wauters, Eva Lievens & Peggy Valcke
contracts in a consumer environment. We will focus pursuing an individual claim. It also strengthens the
on whether alternative ex ante mechanisms may be negotiating power of potential claimants and contributes to
a solution to provide users with more balanced ToU. the efficient administration of justice, by avoiding numerous
An example is the use of pre-approved contracts proceedings concerning claims resulting from the same
where an independent third party will assess and infringement of law.6
approve or disapprove of the use of a company’s ToU.
6 The European consumer organisation BEUC (Bureau
If approved, the ToU are valid for a certain amount
Européen des Unions de Consommateurs) defines the
of time and immune for judicial action. Another
concept more simply as “a legal procedure enabling
illustration of this approach is where consumer and
many victims of the same harm or loss to obtain
business organisations negotiate standard contracts
compensation by way of a single group application to
that create an equal balance between business and
court”.7
users’ interests. We will also address whether there
are possibilities to take into account SNS users’
7 The concept of collective action is not new, and
individual values or preferences in such standard
probably the most well-known is the class action
contracts.
system of the USA.8 With regard to SNS, several class
actions have been filed in recent years. In April 2011,
for instance, a lawsuit was filed in California with
I. Ex Post: Collective regard to the ToU of Facebook. On 26 August 2013,
Redress Mechanisms the case was settled and confirmed by the Court,
whereby Facebook agreed to (a) establish a $20 million
4 The value of goods or services in consumer contracts dollar settlement fund and (b) amend its Statement
is often low in comparison to business contracts. It is of Rights and Responsibilities which governs the use
therefore argued that consumers often do not seek of its site and to implement additional mechanisms
redress because of the small value of the claim and giving users more information about and control
the expensive and time-consuming litigation, which over how their names and portraits are used in
results in an imbalance between the efforts and the connection with the feature of ‘Sponsored Stories’.9
expected compensation. A study commission by the In the aftermath of this case, Facebook announced
European Commission on consumer experiences and on 29 August 2013 that it would update its Statement
consumer redress showed that consumers are aware of Rights and Responsibilities and its Data Use Policy.
of their rights and that they do have some knowledge
about the existence of redress mechanisms.2 An 8 In the EU, several Member States have adopted a form
individual court proceeding was the mechanism of collective action that can be divided into three
that most consumers recognised. Although they broad categories:10 group actions, representative
considered it to be beneficial because of the legally actions and test procedures. In group actions, an
binding decision, most of them were also wary exactly defined category of persons will bring an
to start such a procedure because they perceived action to enforce their individual claims together,
it as expensive and time-consuming. Consumers in one procedure, in accordance with specific rules
indicated they would use it only in the most serious designed for such purpose.11 In a representative
cases.3 To improve access to justice, Member States collective action, an organisation, a state authority
and the European Union itself have been developing or an individual on behalf of a group can start a
other mechanisms such as collective action, procedure. In contrast to the collective action, the
alternative dispute resolution (ADR) and small claims individuals that are represented are not part of the
procedures. However, alternative or online dispute procedure.12 Lastly, in a test procedure, an individual
resolution4 and small claims procedures5 require claim is tested that makes it a precedent for future
action from individual users and are currently still similar cases.13
very much theoretical options with regard to SNS
ToU. Yet, depending on the developments in SNS, 9 In total, 17 Member States have installed a collective
this could change in the (near) future, making them redress procedure.14 In the context of its Consumer
viable redress options for users. Policy Strategy 2007-2013, the Commission ordered
two studies: one on consumer evaluation of available
5 At the moment there is no coherent legal definition redress mechanisms15 and the other which evaluated
of collective redress in the Member States or at the the effectiveness and efficiency of collective redress
EU level. The Commission’s Communication of June mechanisms in the EU. 16 These studies show that
2013 describes the concept as follows: they are not widely used and that they tend to be very
different, resulting in diverse results. A comparative
Collective redress is a procedural mechanism that allows, study found that a considerable heterogeneity exists
for reasons of procedural economy and/or efficiency of within the three broad categories (supra), which
enforcement, many similar legal claims to be bundled into implies that essential features of collective actions
a single court action. Collective redress facilitates access to are regulated in diverging ways.17 Overall, the studies
justice in particular in cases where the individual damage and consultations of the Commission showed that
is so low that potential claimants would not think it worth
2 140 2014
the vast majority of the existing collective redress mechanisms competence to claims under data protection laws.22
tend to have some elements that work, and some that do not. Only qualified consumer organisations may make
Almost all existing collective redress mechanisms have some use of this article:
added value compared to individual judicial redress and
alternative dispute resolution schemes. But their efficiency associations with legal personality for the promotion of
and effectiveness could be improved. The mechanisms have commercial interests, insofar as their membership includes
been applied in relatively few cases.18 a considerable number of businesses marketing goods or
commercial services of the same or a similar type on the
10 A briefing paper of DG for Internal Policies for the same market, insofar as their staffing, material and financial
European Parliament in 2011 came to the same resources enable them actually to perform the interest
conclusion and stated that “[t]hese differences point promotion functions laid down in their statutes.23
to disparities between the accessibility of collective
redress to European consumers in different countries 13 However, the Verbraucherzentrale Bundesverband e.V.
and sectors. European consumers are confronted with (VZBV), a non-governmental organisation that acts
a complex legal patchwork of solutions which are as an umbrella for 41 consumer organisations,24
applied by some Member States but not by others.”19 has successfully challenged several data protection
terms. This was only possible if the privacy policy of
11 Several Member States have introduced a mechanism
the company could be considered part of the general
that permits consumer organisations to start a legal
ToU.25 With regard to SNS in particular, the VZBV
procedure on behalf of the collective interests of
challenged several clauses of the ToU of Facebook.
consumers. For instance, in France, Article L421-1
The Berlin District Court found the following terms
of the Code de la Consommation (Consumer Code)
to be invalid: the copyright license, the use of
stipulates that “Duly declared associations whose
the name and profile picture in connection with
statutory object specifies the protection of consumer
advertising and commercial content, the vagueness
interests may, if they are approved for this purpose,
in the wording of the termination clause (“violates the
exercise the rights conferred upon civil parties in
letter or spirit of this Statement, or otherwise creates risk
respect of events directly, or indirectly, prejudicing the
or possible legal exposure for Facebook”).26 In November
collective interest of consumers”. This implies that
2013, the Berlin regional court declared 25 clauses
only recognised consumer organisations can start
of Google’s ToU unlawful, including the liability
a court procedure. In 2004, the French consumer
clause, the term that stipulated that the company
organisation Union Fédéral de Consommateurs (UFC)
reserved the right to check, change and delete all
challenged the ToU of the Internet service provider
data submitted in their services; the right to directly
AOL France. The Court judged that 31 of the 36
access a device in order to remove applications; as
clauses were in breach of French law.20 One of the
well as the right to completely cease to provide
provisions deemed illegal by the UFC was a clause
functions and features at their will.27
whereby the client had to indemnify AOL France
for all complaints and costs, including and without
14 In Belgium, certain consumer organisations also
limitation of the reasonable legal fees. The court
may start a representative action on behalf of an
classified this provision as too broad because it did
unidentified group of people in order to defend
not define ‘reasonable costs’ and it did not give the
collective consumers’ interests. For instance, the
possibility to determine the costs for the client. The
consumer organisation Test Aankoop sued Apple
ToU of AOL France also contained a cap on its own
over its one-year warranty policy. Test Aankoop
liability equal to the last six months of fees paid by
claimed it was in contradiction with European law
the user. This was judged illegal by the court because
that demands a two-year warranty for consumer
it was in breach of the Code de la Consommation, which
electronics. In response to the claim that was filed,
stipulates that it is inappropriate to exclude or limit
Apple changed its policy, now giving two years of
the consumer’s legal rights in respect of the business
warranty for its products.28
or another party in the event of total, or partial,
failure to perform, or defective performance by the 15 In the last decade, the European Commission has
business of any one of the contractual obligations. taken several steps to adopt a coherent approach
In March 2014, the French consumer organisation towards collective redress mechanisms. In its
Que Choisir? filed a lawsuit with the Tribunal de Grande Consumer Policy Strategy 2007-2013, the Commission
Instance in Paris with regard to the ToU of Google, stressed the importance of consumer redress:
Facebook and Twitter, and their privacy policies in
particular.21 The judgment is expected later this year. If consumers are to have sufficient confidence in shopping
outside their own Member State and take advantage of the
12 In Germany, certain consumer organisations can internal market, they need assurance that if things go wrong
start a judicial procedure under Article 1 of the they have effective mechanisms to seek redress. Consumer
Unterlassungsklagengesetz for infringing standard disputes require tailored mechanisms that do not impose costs
contract terms and practices that infringe consumer and delays disproportionate to the value at stake.29
protection legislation, excluding data protection
regulation. A new draft bill would extend this
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16 The studies in this domain (supra) showed that the SNS environment may be attributed to a general lack
situation in the EU was unsatisfactory (supra).30 As a of awareness, not only for individual consumers but
follow-up on the Green Paper, a consultation paper also for consumer organisations. Because of the ‘free’
was published in 2009, presenting a first working nature of the services and the fact that the negative
analysis of the impact of policy options designed in impact of certain terms is not directly tangible, both
the light of the replies to the Green Paper and inviting users and consumer organisations may feel that
stakeholders to provide further information.31 action is not immediately necessary nor possible.
However, given the impact and pervasive nature of
17 In February 2012, the European Parliament adopted SNS on daily life, we feel that both individual users
the resolution “Towards a Coherent European and consumer organisations should be made aware
Approach to Collective Redress” in which it welcomed of the importance of taking action in this field in
the Commission’s efforts to establish a coherent case of infringements on fundamental rights, such
European approach to collective redress but at as privacy or consumer rights. In addition, the
the same time stressed that the Commission “must fact that major SNS are established outside the
respect the principles of subsidiarity and proportionality EU41 makes it more difficult to start proceedings
with regard to any proposal that does not fall within the against these companies. Within the EU, disputes
exclusive competence of the Union”.32 with a cross-border element are subject to the
Brussels I Regulation, which lays down the rules
18 In June 2013 the Commission adopted a package for the jurisdiction and enforcement in civil and
of three documents: a Communication,33 a commercial matters.42 The purpose of the Regulation
Recommendation34 and a proposal for a Directive is to facilitate the recognition and enforcement of
on competition damages.35 The Recommendation judgments among Member States for internal market
states that all Member States should install collective purposes.43 In principle, when an SNS is established
redress mechanisms and take the necessary measures outside the EU, the Regulation is not applicable.44
that are set out in this Recommendation and at the The revision of the Brussels I Regulation has resulted
latest two years after its publication. Furthermore, in Regulation No 1215/2012 of 12 December 2012 on
Member States should ensure that the collective jurisdiction and the recognition and enforcement of
redress procedures are fair, equitable, timely and not judgments in civil and commercial matters, which
prohibitively expensive. The goal of the Commission came into force as of 1 January 2013 and will be
is not to harmonize but “to list some common, non- implemented as of 10 January 2015.45 Of importance
binding, principles that Member States should take is Article 18 (1): “a consumer may bring proceedings
into account when crafting such mechanisms”.36 The against the other party to a contract either in the courts
package of the Commission has been received with of the Member State in which that party is domiciled or,
mixed results, with questions raised as to whether regardless of the domicile of the other party, in the courts
this truly is a step forward in the collective redress for the place where the consumer is domiciled.”46 This
process.37 According to Hodges, the package of means that a consumer, as of the beginning of 2015,
proposals “reveals severe political compromises and can bring a company that only has offices outside
serious fault lines”.38 He acknowledges that the rights the EU before the courts of his domicile on the
of all parties are respected, that it provides some basis of Article 18. 47 However, the Regulation does
robust safeguards against abusive litigation and that not take into account the possibility of collective
economic incentives to bring speculative claims. action implying, according to certain scholars, that
However, he considers the Recommendation’s a concentration of claims can only be brought in the
list of safeguards to be porous and unenforceable. court of the domicile of the defendant.48 According
Moreover, the key factors that affect collective to Tang, the reason can be found in the fact that
litigation are controlled at the national level. In his at the time of writing the Regulation, “there was no
view, the package will not achieve a level playing consideration to provide any special jurisdiction rules for
field and continued diversity will promote forum this type of action.”49 This makes it very difficult to
shopping between jurisdictions.39 For Stadler, an start a collective procedure against an SNS in a cross-
important gap is “the failure to provide clear rules for border dispute. In sum, at the moment, the use of
cross-border cases”.40 collective redress mechanisms to enforce SNS users’
rights is still confronted with various obstacles.
19 Given the current fragmented situation, it seems
that using a collective redress mechanism to enforce
their rights is not an obvious choice for European II. Ex Ante: Pre-approved, Negotiated
SNS users. Not all Member States have already
introduced such procedures; even in Member States and Interactive Contracts
that have, the procedures seem to be underused.
Up until now, there have been just a few cases 20 Given the reluctance of users to go to court if their
against SNS that were introduced by consumer rights are violated, the lack of awareness and
organisations, mainly in Germany and France (supra). questions about the practical implementation of
The underuse of collective redress mechanisms in an ex post remedies to SNS-related issues, it may be
2 142 2014
argued that other mechanisms should be introduced cial or problematic contracts that are not pre-ap-
to protect users’ interests. In this section we will proved and that could include problematic terms.59
assess the option of ex ante remedies – mechanisms
that entail an intervention before the user has to 24 Although he finds that the system has many
agree to the ToU. First, we examine the introduction advantages, he also isolates several issues that have
of pre-approved contracts by a public authority or to be taken into account. First, he finds allowing
private interest groups, sometimes referred to as partial approval of terms necessary. This is because
administrative control;50 second, we discuss the consumers are a heterogeneous audience, and what
option of model form contracts that are negotiated might seem fair for some consumers may not be
by consumer and business interest groups. for other consumers. Also, companies will need
incentives, and an “all-or-nothing” regime will likely
have limited success. He argues that companies
1. Pre-approval of contracts would rather accept the flexible framework of partial
approval. For consumers, providing a system of “all-
21 The idea to introduce a certain control by a third or-nothing” would make things simpler: they would
party with regard to consumer contracts is not a new not have to survey contracts and read non-approved
one. Already in 1970 in the USA, Arthur Leff proposed parts. Second, he assesses how the contract can be
a type of direct governmental quality control.51 approved by the independent third party: binary,
While Leff advocated a statutory mechanism, other meaning approved or not, or by grading contracts.
US scholars favoured an administrative intervention. Becher prefers the binary option for several reasons,
For instance, Kaplow and Shavell suggested the such as the difficulties in reaching a consistent
idea of a legal body – possibly a regulatory agency manner of evaluating and grading the contracts and
– writing standard form contracts and even making in who will do the grading, the party responsible for
it mandatory in certain settings.52 Bates was of the approving the contract or a consumer organisation.
opinion that “a system of administrative regulation
that certifies the validity of terms in form contracts (…) 25 It is possible to make the pre-approval of contracts
constitutes a better solution than one that depends on a mandatory system. However, Becher sees different
litigation (…).”53 Gillette followed this line of reasoning reasons to keep it voluntary, such as the significant
and considered a procedure that lets consumers and resources that would be needed for an independent
sellers submit a contract to an administrative agency third party and a possible violation of the freedom
that would be able to evaluate the validity of the to contract when pre-approval would be mandatory
provisions in that contract.54 and the (probably) fierce opposition by interest
groups that represent business interests. Given
22 Becher has developed an extensive model of pre- the network effects of SNS,60 we may assume that
approved contracts and based it on the idea of a dominant SNS provider is less likely to have an
allowing third parties to review and approve incentive to draft user-friendly ToU. In that case,
standard contracts.55 The purpose of this system a voluntary system may not be the ideal solution.
is to ensure that consumer contracts are drafted Given that the reasons for opposing a mandatory
fairly and efficiently. He considers such an approval system may indeed be valid, a middle course could
a quality certification, indicating that an approved be a co-regulatory system, which provides incentives
contract meets both substantive (fairness, efficiency, for the providers to join the system but still attributes
cognitive biases) and procedural (font, colour, enough leeway for the concrete implementation and
language, etc.) standards.56 Companies could get enforcement.
an approval for the whole contract or for part of
the contract. The system would be voluntary, so 26 Finally, Becher takes into account some challenges
incentives for companies to submit their contracts and anticipates criticism his model may raise. He
for approval are necessary. A possible incentive first addresses the issue of institutional identity. The
could be the immunisation against future claims if system should be able to provide strong incentives to
the contract were approved. The following aspects sellers to use it; hence, resources must be provided
could be taken into account: the duration of the to optimise its functioning and enforcement capa-
immunity; the scope of the immunity (which claims bilities. Becher prefers a central institution backed
will be basically excluded from discussion when by governmental funds, but acknowledges that be-
approved); the kind of evidence that is allowed cause of the drawbacks, this system has other op-
and required in order to challenge the ordinary tions such as non-profit organisations that should
meaning of approved terms, etc.57 Gillette calls this be looked into as well. A second issue that is raised
immunisation a “safe harbour”.58 is whether a new institution is really necessary, or
whether an already existing organisation could also
23 Becher finds that this would relieve consumers from be an option. The use of an existing organisation
their “theoretical duty to read the fine print”, economis- could significantly reduce costs and benefit from the
ing their time and directing their attention to cru- expertise and knowledge already available. Becher
proposed the US Federal Trade Commission (FTC),
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an independent agency with the objective to protect of ‘shopping’ for different terms. However, this
consumers, as a possibility.61 In Europe, consumer or- argument assumes that consumers actually do
ganisations at the national level or European level shop for contract terms, which is something that is
(such as BEUC) could take up this role. questionable, for instance in the case of SNS.
27 An implementation of the pre-approval of contracts 32 Luth points to incentives for consumers, in particular
can be found in Israel. In 1964, a regulatory system whether a contract’s sign of approval, like a quality
was established in which standard contracts were label, will be something users will base their decision
regulated directly through legislation and whereby a on. Individual terms may not be a relevant feature
dual layer of judicial and administrative control was for a user, but the overall quality of the ToU might
established.62 Individuals and businesses can submit be. However, because of network effects (supra), SNS
a contract for approval. If a term is invalidated, this markets often contain a dominant player. So even
does not affect the validity of other terms in the when there is a SNS that is more user-friendly in
contract or the enforceability of the contract as a its ToU and privacy policy, it might not make sense
whole.63 to users to be a part of that network when all their
friends are members of another SNS with less user-
28 However, the success of the system is limited. friendly terms.
The 1964 law generated only sixty submissions.
Therefore, the system was revised in 1982 with the
purpose of increasing incentives for sellers. Despite III. Negotiated contracts
the improvements, the success remains low. Gillette
contends that the reasons for limited success are not 33 Another ex ante mechanism is the negotiating of
clear and may not be transferable to other states.64 standard terms that would eventually result in a
However, both Becher and Gillette point to the risk model form contract. Consumers, including SNS
of free-riding.65 users, could be involved in the drafting process, for
instance through consumer organisations,68 in this
29 This risk of free-riding may exist because, once way also aiming to concretise participatory policy-
approved, contracts may be readily available to making objectives that have been put forward at
other parties who have not contributed to the the European level.69 According to Luth, this policy
process of obtaining approval.66 Gillette considers option would have the “potential of improving quality
the submission by a trade organisation a possible of terms beyond the level of excluding onerous terms”.
alternative to avoid the free-riding problem. Also, information and expertise of both businesses
and consumer groups may be used to come to a
30 Other risks that may be identified are related to cost,
real understanding about the terms in consumer
more specifically that this cost would be passed on to
contracts.70 The idea in itself is not new. Based on
consumers. 67 In the case of SNS, which are offered to
experiences in the Netherlands and Sweden, in 2000
users on a ‘free’ basis, we may wonder how a transfer
the European Commission considered the possibility
of cost would be calculated. An option may be that
to encourage the establishment of systems that
users will be subjected to more advertisements.
“encourage the negotiation and discussion of terms with
Becher disagrees that cost will be problematic and
the professionals”.71 These kind of negotiated model
is of the opinion that the “significance of the problems
contracts could be subject to self- or co-regulation.72
associated with the Standard Form Contracts cannot
easily be exaggerated, especially when keeping in mind 34 Examples of this approach can be found in the Nordic
the more vulnerable groups of consumers”. Creating Countries – Norway, Sweden, Finland and Denmark
such a system would promote trust and confidence – which have installed a special state authority
between companies and consumers and would to enforce consumers’ collective interests: the
reduce transaction costs for companies and increase Consumer Ombudsman.73 According to Viitanen, a
public confidence. According to Becher, however, for typical feature of the Nordic system of consumer
companies, the instalment of such a system would protection is the “frequent use of preventive actions
reduce some expenses and increase profits. And in the supervision of marketing and standard terms”.
though it may result in higher prices, consumers He distinguishes three instruments: advance
may avoid provisions that they do not know how to opinions, marketing guidelines and negotiations
evaluate correctly. Finally, as the mechanism would with trade organisations concerning standard
be voluntary, if a consumer does not want to pay the terms. The purpose of these instruments is to
higher price, he or she still can choose to use the avoid infringements of law by informing traders
products or services of a company that does not have and by negotiating with them. In addition, these
an approved contract and which offers a lower price. instruments are not prescribed by law, but have
been created through practice over the years.74
31 Another objection could be the fact that since all
The Nordic Ombudsmen can start negotiations in
companies will offer the same set of approved
several branches of business with the respective
terms, consumers would be denied the possibility
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trade organisations. For the traders, there is the negotiations would allow for competing interests
advantage that the Consumer Ombudsman is less to be taken into account in the final model contract.
likely to take actions against negotiated contract Second, if these contracts have been negotiated
terms. For consumers, these negotiations could add under fair procedures, it can be expected that the
provisions which improve consumers’ contractual terms will be fair and sensitive to the particular
position compared to standard terms that were interests of the stakeholders. Third, because
used before or even compared to the mandatory consumers have a voice in the negotiation through a
consumer contract law provisions.75 representative, this should generate standard terms
that are more likely to correspond to consumer
35 According to Viitanen, there are several positive preferences than one-sided ToU would. However,
elements about the Nordic approach. First, the only ensuring representativeness may involve some
task of Consumer Ombudsman is the enforcement technical, financial and organisational assistance.
of consumer protection. This means that this Fourth, when consumers are given the chance to
body has been able to focus all available resources influence the content of standard terms, the quality
on consumer protection without the fear that of the ToU may rise. Finally, enforcement costs of
the fulfilment of other tasks would get the upper regulatory agencies and courts to guarantee that
hand. Second, the wide use of preventive actions companies use fair contract provisions will be lower.
and persuasion has been very successful, and most
traders have been more willing to co-operate. He 39 A drawback of the system could be that starting
considers the main reason for this willingness in the negotiations and adopting negotiated contracts will
possibility of hard law sanctions when persuasion be more costly in expense and effort for companies
fails: “without the possibility to use hard law sanctions for whom it is cheaper to adopt low-quality ToU.
if necessary, the persuasive methods would not be so Nonetheless, Luth84 finds some incentives that can
successful as they have been now in practice”.76 persuade companies. First, the drafting costs of
ToU would be diminished because of the negotiated
36 In the Netherlands, the Social and Economic Council contract. Costs are also saved because the terms
(SER) provides business and consumer organisations of the negotiated standard form contract are less
with an open framework to negotiate balanced ToU. likely to be challenged in court and even if they were
One of the statutory tasks of the SER is to “promote challenged, the chances of being upheld by the judge
desirable trends in business and industry”.77 To achieve are higher. Second, a negotiated contract provides
this goal, the SER encourages business and consumer predictability and certainty about the legal validity
organisations to start negotiations over ToU that are of the terms. Third, it can be regarded as a token
satisfactory for both parties. This is a self-regulatory of consumer friendliness and could enhance trust
process which ideally leads to the establishment between consumers and companies. Within the same
of Consumer Complaints Boards composed of context, reputation and public goodwill could also
representatives of business and consumers. be an important incentive for companies to adhere
to the negotiated standard contract. Finally, from a
37 A business organisation or consumer organisation business perspective, because these contracts have
can take the initiative to start negotiations about the been negotiated by representatives of the sector,
ToU in a particular sector. If a bilateral agreement is companies may rely on the fact that these documents
reached, the business is allowed to use the standard have been developed with business interests in mind
clause of the SER which precedes the ToU.78 This as well.
provision states that the terms were negotiated with
the Consumentenbond, the general Dutch Consumer’s 40 The attraction of negotiated ToU could be boosted by
organisation within the framework of the SER.79 The making the process of negotiation and obtaining the
number of sector consumer organisations that are approved model not too costly and strenuous on the
involved in the negotiations is increasing.80 In the part of the companies. However, when the terms are
framework of this mechanism, on the one hand, easy to obtain and not all companies that use them
consumers know that the ToU for a particular have contributed to the negotiations, there is, again,
sector have been carefully considered, hence the risk of free-riding. Therefore, Luth proposes a
strengthening their legal position. Businesses, on kind of funding mechanism for these negotiations in
the other hand, have ToU that generate trust with order to avoid free-riders. Another mechanism that
consumers. In addition, balanced ToU may help to could strengthen the use of negotiated terms is the
avoid conflicts between consumers and businesses.81 enhancement of enforcement against one-sided and
For the government, this kind of mechanism has the onerous provisions. In addition, companies could be
advantage that its only task is to create the basic granted a more favourable position when confronted
framework in which the system will operate.82 with a claim against the model ToU, giving them a
higher chance to win a dispute when they stick to
38 Luth finds several advantages with the mechanism a model form contract and resulting in lower legal
of negotiated contracts.83 First, the fact that both costs.
consumers and businesses are represented in the
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IV. The use of interactive contracts easily communicate amongst each other about the
ToU and their modularity, letting the few users that
41 A point of criticism that is voiced with regard to pre- actually do read the ToU easily contact others and
approved or negotiated contracts is that consumers express their thoughts on these terms.92
will no longer have a chance to shop for different
contracts. A way of responding to this critique may
be found in the use of interactive contracts. The
idea is that this kind of contract will take the form
of a standardised contract, but that certain parts
of the agreement can be modulated by the users.85
These modular provisions will be pre-drafted by the
company. The drafting party has to decide which
terms have to be customisable. For instance, an SNS
could specify to its users where to store their personal
data, the applicable law of the contract or the license
conditions for the user’s intellectual property.86 The
seller may provide these customisations for free or
at a cost and must decide which will be the default 1.1. The role of consumer organisations
setting for each modular provision. Finally, the seller
must draft its interactive contract in such a way that 44 Given the heterogeneity and differences in
it invites consumer interaction. If possible, the seller preferences, organisations that represent users
may also submit its contract for approval with a third and consumers might be best placed to defend and
party, or negotiate balanced terms with consumer promote their interests, also in the SNS environment.
organisations (supra). This would allow the voice of users being heard when
SNS draw up ToU. In general, these organisations
42 According to Chen, the use of interactive contracts have better access to resources and expertise
allows for the avoidance of efficiency losses that than individual consumers. They can also provide
information and advice and can take preventive or
sellers and users may experience when using
ex post measures, like starting a collective redress
completely standardised agreements.87 For instance, procedure.
in the case of a standard contract, and in particular
in the case of a pre-approved or negotiated contract,
a user that is willing to pay more for a specific
provision cannot do this because the terms are non-
negotiable. With an interactive contract, the seller is
able to offer terms that are more desirable for a user
– for instance, a lower price for a shorter warranty
period. Since it is known that users usually do not
read ToU (supra), interactive contracts may provide
an incentive to actually do so. ToU are traditionally
offered on a take-it-or-leave-it basis, and users may
feel that they have no control. In this way, users who
want to shop for terms and care about what is in
the ToU can exert some form of control over the
contract they are agreeing to.88
43 An objection to this kind of contracts is the cost.

Devising an adjustable contract that is properly 45 However, there are some elements that have to
drafted will take time and effort and will hence be be taken into account. It is argued that consumer
more expensive than traditional ToU. As Chen states: participation in the EU is limited and outweighed
“attorneys must consider all the different variations in by the influence of business interest groups.93
provisions and how these provisions will interact with In addition, although consumer organisations
each other when combined in various ways”.89 Sellers express consumers’ interests, their impact on
also have to be careful to make the contract not policy is sometimes considered to be limited and
too customisable. Users may not be given too much their membership is relatively small.94 Consumer
choice. Research has suggested that a choice overload interests themselves may be very diverse as the
may lead to frustration and demotivation.90 Factors consumer group is large and diverse to start with.
that influence the actual interactivity of the contract Correspondingly, differences between consumer
are the way the customisable terms are presented91 organisations may result in various focus points
and the degree to which users interact with each between the organisations. The existence of
other. With regard to the latter, SNS allow users to multiple organisations which each have their own
2 146 2014
area of expertise could make it very difficult to promising, they are still in their infancy, in many
cooperate and could result in the lack of a coherent cases fragmented and not adapted (enough) to cross-
consumer voice, which could force regulators to border disputes. In addition, awareness of users
approach a large number of organisations in order and consumer organisations about these ex post
to obtain the correct consumer input. Another mechanisms should be increased first and foremost.
issue that consumer organisations are confronted First, users need to be aware that they have rights
with is the lack of resources. This is aggravated and that they can actually take action when they
by the disparity with business organisations.95 In feel that their rights have been infringed by SNS
order to succeed in their tasks, according to Dayag- providers. Second, users need to be aware that there
Epstein, consumer organisations should be properly are different redress mechanisms that they can use.
trained, properly funded and cooperate with fellow A long-term and sustainable awareness strategy
consumer organisations, not only nationally but should be created by the EU or national governments,
also with other countries or on a European level. in cooperation with consumer organisations, to
In certain legal systems, a public authority might inform users about their rights. This approach could
be better or equally suited to represent consumers’ also prove helpful with regard to other consumer
interests. For instance, in the Nordic countries the protection issues where the interests of consumers
Ombudsmen negotiate with trade organisations are at stake.
because consumer organisations in these regions
are rather weak. Which party would be best placed 49 We have also taken into account the option of ex
to defend consumers will depend on the institutional ante schemes, which take a part of the responsibility
arrangements and existence of competent consumer away from the users and transfer it to the service
organisations in the respective legal systems.96 providers and third parties such as consumer
organisations.
46 Yet SNS often operate on a global level, making
it difficult for national initiatives to succeed in 50 We have discussed, first, pre-approved and, second,
improving SNS users position vis-à-vis SNS providers negotiated contracts, which may incorporate users’
on a general level. We believe that European interests by introducing business and consumer
and international organisations that advocate organisations in the contract-making process.
consumer rights, such as the BEUC or Consumers However, both mechanisms may suffer from the
International,97 could play an important part in free-riding problem and the issue of cost. Pre-
putting these concerns on the European policy approving or negotiating will take more effort and
agenda on the one hand, and that the European will likely be more costly than using standard ToU
Commission could take up a mediating role between that are readily available. Furthermore, there is
these organisations and large SNS, such as Facebook, the possibility that consumers, once aware of the
on the other hand. existence of this type of contract, will never read
ToU again because they think they are signing a
user-friendly agreement each time. When not all
B. Conclusion companies in a certain sector adhere to the system,
and users assume they are part of this negotiated
47 It is a general phenomenon that SNS users have a agreement, they risk ending up with a contract that
lack of awareness about and understanding of the does not take the consumers’ interests seriously.
ToU they have agreed to when creating a profile. This implies that awareness-raising of users should
In addition, it is possible that (parts of) these be an important priority. The use of pre-approved
agreements may not be enforceable under European and negotiated contracts may be criticised because it
law, because they create a significant imbalance does not provide users with an opportunity to shop
between SNS providers and their users. In this paper around for better terms. An interesting alternative
we assessed several mechanisms that could help to may be the use of interactive contracts that allow for
restore this imbalance. a certain amount of customisation. These contracts
may also use pre-approved or negotiated contract
48 First, there are ex post mechanisms which can be terms whereby both the default terms and the
used after an issue has arisen. The most obvious one modular terms can be discussed. This will allow for
is starting a legal procedure before a court. However, ToU that are balanced in the default as well as in
because of the relatively low value of consumer the customised setting. Moreover, it gives users the
claims in comparison to the costs and efforts of a opportunity to choose terms that reflect the values
judicial procedure, most consumers do not act upon that are important to them (e.g. high or lower level
complaints they may have. There are different of privacy). In order to decide whether such a system
mechanisms that try to provide alternatives to could be feasible in an SNS environment, more
traditional individual legal proceedings, such as social/behavioural and legal research is necessary as
collective redress mechanisms. Our analysis has well as a thorough and realistic cost-benefit analysis
shown that while these mechanisms may seem of the various systems.
2 147 2014
51 To conclude, we have stressed that awareness- law” (published by Larcier, 2004, under the
raising of users is a key issue, both for ex ante and title “Digital Diversity - Convergence of Media,
ex post mechanisms. In addition, incentives should Telecommunications and Competition Law” - in
be created for SNS providers to adopt more user- Dutch). She also holds a postgraduate diploma EC
friendly terms in general and, for instance, to submit Competition Law at King’s College in London (2006).
them to an approval or negotiation process. To
achieve this, supranational pressure, for instance Her areas of expertise include legal aspects of media
from the European Commission, will be more innovation, media pluralism, and the interaction
effective than fragmented national initiatives. Action between media/telecommunications regulation and
at the EU level would also lead to a more harmonised competition law. In recent years, she was involved
approach, and hence more legal certainty for users. in several FWO, IWT, BOF, iMinds and FP7 research
Next to the Commission, consumer organisations projects dealing with media power, user-generated
and other civil society organisations that represent content, Internet regulation, mobile and online
users’ interests also have an important role to play television, e-publishing and online journalism,
in generating awareness about rights and obligations public service broadcasting and state aid, co- and
of SNS users and taking action when these rights at self-regulation in the media, privacy in electronic
stake. communications and social networks.
Ellen Wauters studied political sciences at the KU * This paper is based on research is funded by the Agency for
Innovation by Science and Technology (www.iwt.be; EMSOC
Leuven and graduated in 2002. She obtained her law research project; User Empowerment in a Social Media Culture)
degree as a working student at the Vrije Universiteit and the Research Fund Flanders (www.fwo.be; Risk-reducing
in Brussel in 2010. She worked as a contracts & regulatory strategies for illegal and harmful conduct and content
licensing administrator at Sony Music and as a in online social network sites).
legal advisor for Sanoma Media before joining ICRI
in February 2012. In the framework of the EMSOC 1 Wauters, Ellen, Lievens, Eva, Valcke, Peggy, “Towards a better
protection of social media users: a legal perspective on the
project (www.emsoc.be), she is investigating the terms of use of social networking sites”, International Journal
legal challenges of social network sites and, more of Law and Information Technology, 25 March 2014, available at
particularly, whether these networks can be doi: 10.1093/ijlit/eau002.
regulated in a more user-oriented environment 2 Eurobarometer, Consumer redress in the European Union:
Consumer experiences, perceptions and choices, Aggregated
Prof. Dr. Eva Lievens holds a PhD in Law report, August 2009, available at http://ec.europa.eu/
from KU Leuven and has been a member of the consumers/redress_cons/docs/cons_redress_EU_qual_
Interdisciplinary Centre for Law & ICT at KU study_report_en.pdf, 9.
Leuven since 2003 (www.icri.be). She is currently a 3 Ibid., p. 11.
postdoctoral research fellow of the Research Fund 4 Alternative dispute resolution (ADR) can be described as extra-
Flanders and guest professor at Ghent University judicial dispute resolution aimed at resolving disputes out of
court through the intervention of an entity, e.g. an arbitrator,
where she teaches media law and copyright law. conciliator, mediator, ombudsman, complaints board. See
Her research addresses legal challenges posed by Hörnle, Julia, “Encouraging Online Dispute Resolution in the
new media phenomena, such as the regulation of EU and Beyond: Keeping Costs Low or Standards High?”, Queen
audio-visual media services, user-generated content, Mary School of Law Legal Studies Research Paper No. 122/2012,
and social networks, with a specific focus on the available at http://dx.doi.org/10.2139/ssrn.2154214.
protection of children, fundamental rights and 5 Small claims procedures have been introduced to provide
alternative regulatory instruments (self- and co- a cheaper, faster and less formal alternative to traditional
judicial procedures, and to allow individuals a better access to
regulation). Eva was involved in the establishment justice to resolve their disputes at a cost and burden that is not
of the B-CCENTRE (Belgian Cybercrime Centre of disproportionate to the amount of their claim. Cf. https://
Excellence for Training, Research and Education) e-justice.europa.eu/content_small_claims-42-en.do.
and is the Associate Editor of the International
6 European Commission, Communication Towards a European
Encyclopaedia of Laws – Media Law. Horizontal Framework for Collective Redress, COM(2013)
401 final, 11 June 2013, available at http://ec.europa.eu/
Prof. Dr. Peggy Valcke is full time research consumers/redress_cons/docs/com_2013_401_en.pdf, 4.
professor (BOFZAP) at KU Leuven, part-time 7 BEUC, Collective redress. Where and how it works, May 2012,
professor at the European University Institute and available at http://www.beuc.eu/publications/2012-00308-
visiting professor at the University of Tilburg. In 01-e.pdf, 11.
2006, she was visiting professor at Central European 8 In Europe, however, there was a political consensus that the
University in Budapest, Hungary. US model was not the way forward because it created highly
undesirable side effects such as excessive litigation, excessive
transactional costs, inadequate delivery of compensation
Prof. Valcke joined iMinds-ICRI at KU Leuven in 1996
to consumer claimants with small claims, etc. See Hodges,
as a doctoral fellow of the FWO and obtained her PhD Christopher, “Collective Redress in Europe: The New Model”,
in law in 2003 with a dissertation on “Pluralism in Oxford Legal Studies Research Paper, No. 24/2010, 3-4.
a digital interactive media environment: Analysis 9 Fraley et al v. Facebook, Inc., http://docs.justia.
of sector specific regulation and competition com/cases/federal/district-courts/california/
2 148 2014
candce/5:2011cv01726/239253/360. In March 2012, in 26 Landgericht Berlin, Judgement of 6 March 2012, Az. 16 O

British Columbia, Canada, a similar class action lawsuit was 551/10, <http://openjur.de/u/269310.print. See also Dittmann,
filed against Facebook for using names and/or portraits of Marcus, German Court rules Facebook original Friendfinder
users in ‘Sponsored Stories’ without their consent (http:// and various terms and conditions to be illegal (Landgericht
facebookadsclassaction.com). The Court has not yet decided Berlin, Urteil vom 6. März 2012, Az. 16 O 551/10), available
on the matter. at http://www.onlinelaw.de/de/aktuelles/it_news.php?we_
10 Stuyck, Jules, Terryn, Evelyne, Colaert, Veerle et al., An Analysis objectID=324&pid=0. The judgment was upheld in appeal; see
and Evaluation of Alternative Means of Consumer Redress Kammergerichts Berlin of 24 January 2014, Az. 5 U 42/12, http://
Other Than Redress Through Ordinary Judicial Proceedings: www.berlin.de/imperia/md/content/senatsverwaltungen/
Final Report, 17 January 2007, (Leuven Report), available at justiz/kammergericht/presse/5_u_42_12_urteil_
http://ec.europa.eu/consumers/redress/reports_studies/ vom_24.1.2014_kammergericht_anonymisiert.
comparative_report_en.pdf, 12. pdf?start&start&ts=1392399485&file=5_u_42_12_urteil_
vom_24.1.2014_kammergericht_anonymisiert.pdf.
11 Ibid., p. 261.
27 VZBV, Press Release: Federation of German Consumer
12 Ibid., p. 261.
Organisations wins lawsuit against Google. 25 unlawful clauses
13 Ibid., p. 261. in Google’s privacy policy and terms of service, 19 November
14 Austria, Bulgaria, Denmark, Finland, France, Germany, Greece, 2013, available at http://www.vzbv.de/cps/rde/xbcr/vzbv/
Hungary, Italy, Lithuania, the Netherlands, Poland, Portugal, google-vzbv-press-release-2013-11-19.pdf.
Spain, Sweden and UK (in England and Wales). Directorate 28 http://www.zdnet.com/apple-brought-to-heel-in-fight-for-
General for Internal Policies, Overview of Existing Collective the-right-to-warranty-7000027741.
Redress Schemes in EU Member States, 2011, available at
29 European Commission, Communication EU Consumer Policy
http://www.europarl.europa.eu/document/activities/
strategy 2007-2013 - Empowering consumers, enhancing their
cont/201107/20110715ATT24242/20110715ATT24242EN.
welfare, effectively protecting them, COM/2007/0099 final,
pdf, 5. In March 2014, Belgium also introduced a collective
13 March 2007, available at http://ec.europa.eu/consumers/
procedure.
overview/cons_policy/doc/EN_99.pdf.
15 Eurobarometer, Consumer redress in the European
30 European Commission, Green Paper on Consumer Collective
Union: Consumer experiences, perceptions and
Redress, COM(2008) 794 final, 27 November 2008, available
choices, Aggregated report, August 2009, available at
at http://ec.europa.eu/consumers/redress_cons/
http://ec.europa.eu/consumers/redress_cons/docs/
greenpaper_en.pdf.
cons_redress_EU_qual_study_report_en.pdf.
31 European Commission, Consultation Paper on the follow-up to the
16 Stuyck, Jules, Terryn, Evelyne, Colaert, Veerle et al., An Analysis
Green Paper on consumer collective redress, 2009, available
and Evaluation of Alternative Means of Consumer Redress
at http://ec.europa.eu/consumers/redress_cons/docs/
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comparative_report_en.pdf. Coherent European Approach to Collective Redress’,
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17 Stuyck, Jules, Terryn, Evelyne, Colaert, Veerle et al., An Analysis
europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//
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comparative_report_en.pdf, 12. European Economic and Social Committee and the Committee
of the Regions “Towards a European Horizontal Framework
18 European Commission, Green Paper on Consumer Collective
for Collective Redress, COM(2013) 401 final, 13 June 2013,
Redress, COM(2008) 794 final, 27 November 2008, available
available at http://eur-lex.europa.eu/legal-content/En/TXT/
at http://ec.europa.eu/consumers/redress_cons/
PDF/?uri=CELEX:52013DC0401&qid=1397641648895&from=EN
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34 EUROPEAN COMMISSION, Recommendation on common principles
19 DG for Internal Policies, Policy Department A: Economic and
for injunctive and compensatory collective redress mechanisms in the
Scientific Policy, Overview of existing collective redress
Member States concerning violations of rights granted under Union
schemes in EU Member States, IP/A/IMCO/NT/2011-16, July
Law, 2013/396/EU, 13 June 2013, available at http://eur-lex.europa.
2011, 5.
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20 Many of these clauses can also – in a more or less adapted NS0013&qid=1397641648895&from=EN.
manner – be found in certain SNSs’ ToU.
35 EUROPEAN COMMISSION, Proposal for a Directive of the
21 http://www.zdnet.com/google-facebook-twitter- European Parliament and of the Council on certain rules
face-lawsuit-over-illegible-incomprehensible-privacy- governing actions for damages under national law for
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22 http://www.privacylaws.com/Publications/enews/ Member States and of the European Union, COM(2013)
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24 http://en.vzbv.de/. 36 VOET, Stefaan, “European Collective Redress Developments”,

31 August 2013, available at SSRN: http://ssrn.com/
25 VZBV, Press Release: Federation of German Consumer abstract=2318809.
Organisations wins lawsuit against Google. 25 unlawful clauses
in Google’s privacy policy and terms of service, 19 November 37 See HODGES, Christopher, “Collective Redress: A Breakthrough
2013, available at http://www.vzbv.de/cps/rde/xbcr/vzbv/ or a Damp Sqibb?”, J Consum Policy, 37, 2013, 67-89.
google-vzbv-press-release-2013-11-19.pdf. 38 HODGES, Christopher, “Collective Redress: A Breakthrough or
a Damp Sqibb?”, J Consum Policy, 37, 2013, 87.
2 149 2014
39 HODGES, Christopher, “Collective Redress: A Breakthrough or enforcement of judgments in civil and commercial matters
a Damp Sqibb?”, J Consum Policy, 37, 2013, 67-87. (recast) COM(2010)0748 – C7-0433/2010 – 2010/0383(COD),
40 STADLER, Astrid, “The Commission’s Recommendation Summary, <http://www.europarl.europa.eu/oeil/popups/
on common principles of collective redress and private summary.do?id=1234824&t=d&l=en> accessed 9 September
international law issues”, Nederlands Internationaal 2013.)
Privaatrecht, 4, 2013, 484. 47 For instance, the SNS Pinterest does not have offices in the EU,
41 Some SNS offer their services in several EU languages, but so they are normally not bound by the Regulation. However,
this does not necessarily mean that they have offices in this article gives consumers the opportunity to sue Pinterest
all EU countries. Most SNS only have offices or an official in their Member State.
‘establishment’ in a few EU countries. For a discussion on 48 LEIN, Eva, “Extraterritoriality and Collective Redress”, in
this issue, see WAUTERS, Ellen, LIEVENS, Eva, VALCKE, Peggy, FAIRGRIEVE, Duncan and LEIN, Eva (eds.) Extraterritoriality
“Towards a better protection of social media users: a legal and collective redress, Oxford University Press, Oxford, 2012,
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42 COUNCIL Regulation No 44/2001 on jurisdiction and the Law, Vol. 7 2011, 101; http://ssrn.com/abstract=2079237.
recognition and enforcement of judgments in civil and 50 LUTH, Hanneke, Behavioural economics in consumer policy,
commercial matters (Brussels I Regulation) will be replaced by the economic analysis of standard terms in consumer
the European Parliament and Council Regulation No 1215/2012 contracts revisited, Intersentia, Antwerp, 2010, 264.
of 12 December 2012 on jurisdiction and the recognition and
51 LEFF, Arthur, “Contract as Thing”, Faculty Scholarship Series,
enforcement of judgments in civil and commercial matters.
Paper 2827, available at http://digitalcommons.law.yale.edu/
43 COUNCIL Regulation (EC) No 44/2001 on jurisdiction and cgi/viewcontent.cgi?article=3809&context=fss_papers, 1970,
the recognition and enforcement of judgments in civil and 155.
commercial matters (Brussels I Regulation) [2000], OJ L12/1,
52 KAPLOW, Louis and SHAVELL, Steven, Fairness versus Welfare,
recital 1 and 2.
Harvard University Press, Boston, 2006, 217.
44 Brussels I Regulation, Art. 4 (1) 1: “If the defendant is not
53 BATES, Larry, “Administrative Regulation of Terms in Form
domiciled in a Member State, the jurisdiction of the courts
Contracts: A Comparative Analysis of Consumer Protection”,
of each Member State shall, subject to Articles 22 and 23, be
Emory International Law Review, 16, 2002, 11.
determined by the law of that Member State.” See a Notice
of the European Parliament to its members: “The jurisdiction 54 GILLETTE, Clayton, “Pre-Approved Contracts”, Houston Law
rules of the Regulation currently (with some exceptions) do Review, 42:4, 2005, 983.
not apply when the defendant is domiciled outside the EU, 55 BECHER, Shmuel I., “A ‘fair contracts’ approval mechanism:
so that in these cases the Regulation refers to national law Reconciling consumer contracts and conventional contract
(so-called ‘residual jurisdiction’)”. EUROPEAN PARLIAMENT, law”, University of Michigan Journal of Law Reform, Vol. 42:4,
Notice to Members, Petition 1093/2012 by A.D. (German), on 2009, 748.
request that non-EU companies have a legal status in the EU, 56 Ibid., p. 750.
if they wish to trade within its confine, 27.03.2013, available
at http://www.europarl.europa.eu/meetdocs/2009_2014/ 57 Ibid., p. 750.
documents/peti/cm/932/932029/932029en.pdf. 58 GILLETTE, Clayton, “Pre-Approved Contracts”, Houston Law
45 EUROPEAN PARLIAMENT AND COUNCIL Regulation (EU) Review, 42:4, 2005, 988.
No 1215/2012 on jurisdiction and the recognition and 59 BECHER, Shmuel I., “A ‘fair contracts’ approval mechanism:
enforcement of judgments in civil and commercial matters Reconciling consumer contracts and conventional contract
[2012] OJ L351/1. law”, University of Michigan Journal of Law Reform, Vol. 42:4,
46 See Recital 14: “A defendant not domiciled in a Member 2009, 748.
State should in general be subject to the national rules 60 Network effects imply that the value of a product or service
of jurisdiction applicable in the territory of the Member for one user is dependent on the number of other users, or in
State of the court seized. However, in order to ensure the other words, that a good or service becomes more valuable
protection of consumers and employees, to safeguard the when more people use it. In the case of SNS, network effects
jurisdiction of the courts of the Member States in situations have as a result that individuals are inclined to remain a
where they have exclusive jurisdiction and to respect the member of the social network in which most of their friends
autonomy of the parties, certain rules of jurisdiction in are present. For more information, see WAUTERS, Ellen,
this Regulation should apply regardless of the defendant’s LIEVENS, Eva and VALCKE, Peggy, “D1.2.4: A legal analysis of
domicile.” See also the text of the European Parliament: Terms of Use of Social Networking Sites, including a practical
“Common rules of jurisdiction: there must be a connection legal guide for users: ‘Rights & obligations in a social media
between proceedings to which this Regulation applies and the environment’”, EMSOC Project, 2013, available on www.
territory of the Member States. Common rules of jurisdiction emsoc.be.
should, in principle, apply when the defendant is domiciled 61 BECHER, Shmuel I., “A ‘fair contracts’ approval mechanism:
in a Member State. A defendant not domiciled in a Member Reconciling consumer contracts and conventional contract
State should, in general, be subject to the national rules of law”, University of Michigan Journal of Law Reform, Vol. 42:4,
jurisdiction applicable in the territory of the Member State of 2009, 796.
the court seised. However, in order to ensure the protection
62 DEUTCH, Sina, “Controlling Standard Contracts – The Israeli
of consumers and employees, to safeguard the jurisdiction
Version”, McGill Law Journal, 1985, 30, 461.
of the courts of the Member States in situations where they
have exclusive jurisdiction and to respect the autonomy of the 63 BATES, Larry, “Administrative Regulation of Terms in Form
parties, certain rules of jurisdiction in this Regulation should Contracts: A Comparative Analysis of Consumer Protection”,
apply regardless of the defendant’s domicile.” (European Emory International Law Review, 16, 2002, 32.
Parliament legislative resolution of 20 November 2012 on 64 GILLETTE, Clayton, “Pre-Approved Contracts”, Houston Law
the proposal for a regulation of the European Parliament Review, 42:4, 2005, 985.
and of the Council on jurisdiction and the recognition and
2 150 2014
65 GILLETTE, Clayton, “Pre-Approved Contracts”, Houston Law 84 LUTH, Hanneke, Behavioural economics in consumer policy,
Review, 42:4, 2005, 984-9; BECHER, Shmuel I., “A ‘fair contracts’ the economic analysis of standard terms in consumer
approval mechanism: Reconciling consumer contracts and contracts revisited, Intersentia, Antwerp, 2010, 266-268.
conventional contract law”, University of Michigan Journal 85 CHEN, Mark Allen, “Interactive Contracting in Social
of Law Reform, Vol. 42:4, 2009, 758. Networks”, Cornell Law Review, Vol. 97, 2011, 1551.
66 Ibid., p. 989. 86 Ibid., p. 1552.
67 Gillette argues that the process of obtaining approval will 87 Ibid., p. 1553.
most likely prove to be costly for the party that wants to
88 Ibid., p. 1554.
obtain it. GILLETTE, Clayton, “Pre-Approved Contracts”,
Houston Law Review, 42:4, 2005, 988. 89 Ibid., p. 1554.
68 Ibid., p. 269. 90 IYENGAR, Sheena and LEPPER, Mark, “When Choice is
Demotivating: Can One Desire Too Much of a Good Thing?”,
69 LIEVENS, Eva & VALCKE, Peggy, “Regulatory trends in a social
Journal of Personality and Social Psychology, Vol. 79, No. 6,
media context”, in: PRICE, Monroe & VERHULST, Stefaan,
2000, 995-1006; SCHWARTZ, Barry, The Paradox of Choice -
Routledge Handbook of Media Law, Routledge, Oxon, 2012,
Why More Is Less, Harper Perennial, New York, 2004.
557-580.
91 WAUTERS, Ellen, LIEVENS, Eva and VALCKE, Peggy, “D1.2.5:
70 Ibid., p. 270.
Re-designing & re-modeling Social Network terms, policies,
71 EUROPEAN COMMISSION, Report on the implementation of community guidelines and charters: Towards a user-centric
Council Directive 93/13/EEC of 5 April 1993 on Unfair Terms approach”, EMSOC Project, 2014, available on www.emsoc.be.
in Consumer Contracts, COM(2000) 248 final, 2000, available
92 CHEN, Mark Allen, “Interactive Contracting in Social
at http://ec.europa.eu/consumers/cons_int/safe_shop/unf_
Networks”, Cornell Law Review Vol. 97, 2011, 1555.
cont_terms/uct03_en.pdf, p. 25.
93 LUTH, Hanneke, Behavioural economics in consumer policy,
72 LIEVENS, Eva, Protecting children in the digital era: The
the economic analysis of standard terms in consumer
use of alternative regulatory instruments, Martinus Nijhoff
contracts revisited, Intersentia, Antwerp, 2010, 270.
Publishers, Leiden / Boston, 2010.
94 LUTH, Hanneke, Behavioural economics in consumer policy,
73 VIITANEN, Klaus, “Enforcement of consumers’ collective
the economic analysis of standard terms in consumer
interests by regulatory agencies in the Nordic Countries”.
contracts revisited, Intersentia, Antwerp, 2010, 270.
In: VAN BOOM, Willem, LOOS, Marco (Eds.), Collective
Enforcement of Consumer law, Europa Law Publishing, 95 For instance, in the US the ratio between businesses’ resources
Groningen, 2007, 84. and consumer associations’ resources stands at 300:1.
See DAYAGI-EPSTEIN, Orit, “Representation of Consumer
74 Ibid., p. 84.
Interest by Consumer Associations – Salvation for the
75 Ibid., p. 85. Masses?”, The Competition Law Review, Volume 3, Issue 2,
76 Ibid., p. 97. 2007, available at http://www.clasf.org/CompLRev/Issues/
77 http://www.ser.nl/en/about_the_ser/responsibilities. Vol3Issue2Art3DayagiEpstein.pdf, 211.
aspx#promoting. 96 Ibid., p. 271.
78 http://www.ser.nl/nl/taken/zelfregulering/ 97 http://www.consumersinternational.org/.
consumentenvoorwaarden.aspx. 98 PDF/?uri=CELEX:52013DC0401&qid=1397641648895&from=EN.
79 For instance, on a Dutch webshop: “AV CZ/79 4 juni 99 34 European Commission, Recommendation on common
2012. Naar de algemene voorwaarden kopen bij andere principles for injunctive and compensatory collective
verkopers / algemene voorwaarden zakelijke afnemers redress mechanisms in the Member States concerning
/ couponvoorwaarden / cadeaubonvoorwaarden. Deze violations of rights granted under Union Law, 2013/396/
Algemene Voorwaarden van de Nederlandse Thuiswinkel EU, 13 June 2013, available at http://eur-lex.europa.eu/
Organisatie zijn tot stand gekomen in overleg met de legal-content/EN/TXT/PDF/?uri=OJ:JOL_2013_201_R_
Consumentenbond in het kader van de Coördinatiegroep NS0013&qid=1397641648895&from=EN.
Zelfreguleringsoverleg (CZ) van de Sociaal-Economische
100 35 European Commission, Proposal for a Directive of the European
Raad en treden in werking per 4 juni 2012. Deze Algemene
Parliament and of the Council on certain rules governing
Voorwaarden zullen worden gebruikt door alle leden van de
actions for damages under national law for infringements of
Nederlandse Thuiswinkel Organisatie met uitzondering van
the competition law provisions of the Member States and of
financiële diensten als bedoeld in de Wet Financieel Toezicht
the European Union, COM(2013) 404 final, 2013/0185 (COD),
en voor zover deze diensten onder toezicht staan van de
11 June 2013, available at http://www.europarl.europa.eu/
Autoriteit Financiële Markten.”
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80 VAN MIERLO, Thom, “Consumer Protection on the Single com/2013/0404/COM_COM%282013%290404_EN.pdf.
Market: Self-Regulation for Dating Services”, In: BOELE-
101 36 Voet,Stefaan,“EuropeanCollectiveRedressDevelopments”,
WOELKI, Katharina, GROSHEIDE, Willem (Eds.), The Future of
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102 37 SeeHodges,Christopher,“CollectiveRedress:ABreakthrough
81 http://www.ser.nl/nl/taken/zelfregulering/
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consumentenvoorwaarden.aspx.
103 38 Hodges, Christopher, “Collective Redress: A Breakthrough or
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a Damp Sqibb?”, J Consum Policy, 37, 2013, 87.
Market: Self-Regulation for Dating Services”, In: BOELE-
WOELKI, Katharina, GROSHEIDE, Willem (Eds.), The Future of 104 39 Hodges, Christopher, “Collective Redress: A Breakthrough or
European Contract Law, Liber Amicorum E.H. Hondius, Kluwer a Damp Sqibb?”, J Consum Policy, 37, 2013, 67-87.
Law International, Alphen aan den Rijn, 2007, 413. 105 40 Stadler, Astrid, “The Commission’s Recommendation
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2 151 2014
Book review
Sebastian Haunss, Conflicts in the

Knowledge Society The Contentious
Politics of Intellectual Property
Cambridge University Press 2013, ISBN 978-1-107-03642-0
Book Review
by Axel Metzger, Dr. iur. (Munich and Paris), LL.M. (Harvard), Professor of Law at the Leibniz University of
Hannover, Institute for Legal Informatics, Germany.
© 2014 Axel Metzger
Recommended citation: Axel Metzger, Book Review: Sebastian Haunss, Conflicts in the Knowledge Society The Contentious
Politics of Intellectual Property, 5 (2014) JIPITEC 152, para1
1 For a long time, intellectual property law could have non-specialists and the trend towards personalize
been characterized as a secret science practiced by IP. He sees this politicization of IP as part of a
a handful of highly specialized lawyers. However, more fundamental process of social change that
those days of mostly undisturbed discussions within is associated with the knowledge society. The
the epistemic community, as social scientists would ongoing change in the social structure of the former
call it today, are past, at least since the 1960s when industrial societies alters the overall structures of
economists started to analyze the incentives and social conflicts. These conflicts revolve around two
social costs associated with intellectual property meta issues: inclusion/exclusion and the mode of
rights. Their research results were neglected by production of knowledge. After this general part
the (European) intellectual property research (chapters 1-3, p. 1-93), which provides the reader
mainstream for a long time, but in the last twenty with a very valuable discussion of current theories
years they have been widely recognized and of the knowledge society, the author presents four
discussed. Today intellectual property lawyers, case studies on current conflicts in the knowledge
at least those active in academia, are trained society, namely software patents in Europe (chapter
to understand and use arguments and models 4), access to medicines (chapter 5), and two shorter
developed by economists. But what is still missing studies on pirate parties and creative commons
in most scientific works on intellectual property (chapter 6). These case studies are again of high
is a mindful reception of social science research value – especially for readers from law departments.
efforts in the field. One of the recent studies on IP Haunss’ reports are based on in-depth research on
that is rooted in social science but still bite-sized for the actors involved, the creation of their networks
legal scholars is Sebastian Haunss’ monograph on and the frames shared by the actors. This analysis
conflicts in the knowledge society. not only helps the reader to better understand how
the initially dispersed actors have been successful
2 Haunss starts from the basic assumption that IP in aggregating new forms of collective actions. It is
has become more political in the last decades. This also useful for legal scholars to get a glimpse into the
politicization is based on four broad processes: the current methodology used by political scientists. Of
growing economic importance of knowledge-based special interest are the illustrations of the different
industries, the growing internationalization of IP networks of actors (e.g. on p. 124-126, 168, 172).
issues, the growing attention towards IP issues by
1 152 2012
Axel Metzger
3 In his conclusion (chapter 7), Haunss rightly

emphasis that the presented conflicts – despite their
obvious differences in terms of issues, protagonists,
action forms and geography – are characteristic
of the knowledge society and are addressed in a
consistent pattern: they all question the existing
IP regime and its underlying property order of the
knowledge society; they are all transnational; they
did not develop along the cleavages of the industrial
age, e.g. labour-capital or left-right. Still, Haunss is
prudent enough to conclude that these and other
similarities do not suffice to recognize the actors in
the presented conflicts as the core of a real social
movement within the knowledge society. The actors
and networks active in the presented conflicts have
failed so far to mobilize large constituencies beyond
the circle of activists engaged in the specific issues.
4 In sum, the study is a clear “must” for all IP specialists

with an interest in the political dimension of IP.
1 153 2012
Journal of
Intellectual Property,
Information Technology,
and Electronic Commerce
Law
www.jipitec.eu

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2 | 2014

A Qualitative Study on the Adoption of Copyright Assignment Agreements

Proportionality of Website Blocking: Internet

Social Networking Sites’ Terms of Use Addressing Imbalances in the

Sebastian Haunss, Conflicts in the Knowledge Society

Karlsruhe Institute of Technology,

Oblivion, Erasure and Forgetting

© 2014 Aurelia Tamò/Damian George

A. Introduction memory of the Internet. Considering that digital

II. France justified by any historical interest when the person

this was considered an obvious fact to the average IV. Italy

The Implementation of the Audiovisual

Keywords: Audiovisual Media Services Directive, VOD Services, VOCCCD services

© 2014 Jenny Metzdorf

schemes concerning programmes broadcast on TV. D. Promotion of European works

32 Bundeskommunikationssenat, Bescheid GZ. 611.191/0005- uploads/files/Guidance_on_who_needs_to_notify_Ed_4.0_

131 The Commission’s Green Paper of 2013 highlights that

A Qualitative Study on the Adoption

© 2014 Sylvia F. Jakob

A. Introduction B. Qualitative Interviews

not because they allow organizations to re-license, but because

IV. Outlook other hand, use a permissive license, e.g. Apache or

I. Foundations Agreement (FLA). This agreement is strictu sensu a

III. Individual Companies

a.) The Contribution Cannot Be b.) Project Management Might

78 Digia is further aware that a multi-licensing business

40 See e.g. § 29 German Copyright Law. 71 Schaarschmidt et al., supra, p. 11.

Proportionality of Website Blocking:

© 2014 Pekka Savola

3 Proportionality evaluation is depicted as three or

B. Preliminary Considerations 10 On the other hand, the exemption of hosting

Private interests Public interests

authorities is possible.27 Court or administrative property)

imposed on generic orders targeting a website.29 In

no delays no barriers to trade

Directive.60 The system would also be questionable

82 Usually blocking orders have been ordered without

E. Proportionality Evaluation seemed to overestimate the suitability of blocking as

93 The University of Amsterdam study202 and other

important (ibid., p. 81). Notably, emphasising enforcement

Social Networking Sites’ Terms of Use

© 2014 Ellen Wauters, Eva Lievens & Peggy Valcke

2 Aside from issues regarding the lack of awareness

43 An objection to this kind of contracts is the cost.

candce/5:2011cv01726/239253/360. In March 2012, in 26 Landgericht Berlin, Judgement of 6 March 2012, Az. 16 O

24 http://en.vzbv.de/. 36 VOET, Stefaan, “European Collective Redress Developments”,

Sebastian Haunss, Conflicts in the

© 2014 Axel Metzger

3 In his conclusion (chapter 7), Haunss rightly

4 In sum, the study is a clear “must” for all IP specialists

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