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Long-running Dutch web-block dispute may be considered in court anew

By | Published on Monday 19 March 2018

BREIN

Robert van Peursem, Advocate General in the Dutch Supreme Court, has recommended that a long-running dispute over web-blocks in the country be considered by the country’s courts anew. Although he suggests that arguments previously presented by Dutch internet service providers against web-blocking probably won’t work this time.

Web-blocks are a popular anti-piracy tactic within the entertainment industry, of course. Copyright owners get court injunctions forcing ISPs to block their users from accessing specific piracy sites. Whenever web-blocking has been introduced for the first time in any one country, the net firms there usually kick up a fuss but then quickly fall in line and get busy blocking targeted sites once the injunctions roll in.

But in the Netherlands, net firms Ziggo and XS4ALL decided to go legal in a bid to fight off a Pirate Bay blocking injunction secured by the country’s anti-piracy agency BREIN back in 2012. And in 2014, an appeals court sided with the internet firms, ruling that the Pirate Bay web-block that had been put in place by a lower court was “ineffectual” and might “constitute an infringement of [people’s] freedom to act at their discretion”.

BREIN then took the matter to the Dutch Supreme Court, which in turn asked the European Courts Of Justice whether European law had any issues with web-blocking, and the possible “infringement of people’s freedom to act at their discretion” it might cause. Last year European judges basically gave the all-clear for national courts in the European Union to instigate web-blocks on copyright grounds if they so wished.

This meant the Dutch case went back to the Supreme Court, where van Peursem has been considering the European judgement, the specifics of this case, and what the country’s top court might want to do next. And, according to Torrentfreak, he reckons judges should throw out the past order and consider the case all over again.

Bearing in mind the EU judgement, and the web-blocks that have been instigated by courts in other European countries, not least the UK, it seems likely that – in any fresh court hearing considering this case – the arguments previously put forward by Ziggo and XS4ALL wouldn’t be strong enough to stop a blockade being enforced.

In his lengthy opinion on the matter, Van Peursem reiterated that – with the European judgement having ruled on the copyright liabilities of websites like The Pirate Bay – whether or not to block such sites was now about balancing the rights of the copyright owner with the freedom to conduct business and freedom of information rights of the net firms and their customers.

According to Torrentfreak he writes: “At most, one can say that if a copyright is infringed, it normally won’t be possible to justify the infringement by invoking the freedom to conduct business or the freedom of information. After all, these freedoms find their limit in what is legally permissible. [However] this does not mean that a blockade aimed at protecting the right to property always ‘wins’ over the freedoms of entrepreneurship and information”.

It’s now for the Supreme Court to decide whether to follow Van Peursem’s recommendation and call for a new hearing on this matter. Though it probably will. It then remains to be seen whether web-blocking does indeed get the all clear from the Dutch courts second time round. Meanwhile, The Pirate Bay is currently blocked in the country as a result of an interim injunction obtained by BREIN last year.



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