European case law on blocking of illegal file sharing sites

All over Europe, legal proceedings emerge around the question to what extend Internet Service Providers (ISPs) have obligations to block access to illegal file sharing sites. 

Finland
This week, the Helsinki District Court ordered Finnish ISP Elisa to block subscribers’ access to the Pirate Bay. The ISP has to block the domain names and IP-addresses used by the Pirate Bay servers before November 18, or otherwise faces a 100,000-euro fine. Elisa described the court order as vague and ineffective, and has announced that it will appeal the decision.

Previously, the Copyright Information and Anti-Piracy Centre (CIAPC) and the Finnish branch of the music industry group IFPIT insisted and demanded Elisa to block access to the Pirate Bay to protect the copyrights of their members. Elisa however refused to do so and described the blocking demands as “unreasonable”. Now however, Elisa does indeed have to block the access to The Pirate Bay.
 
European case law
Within Europe, ISPs and copyright holders and their representatives are turning to the national courts to determine the liability of ISP’s to block access to file sharing sites such as The Pirate Bay. The subsequent case law seems to vary however.

In the Netherlands, ISPs Ziggo and XS4All are found not obliged to block access to the Pirate Bay in preliminary proceedings. The Dutch judge ruled the measures did not meet the criteria of proportionality and subsidiarity. However, we will have to wait and see if the ruling will be maintained in the proceedings of the merits on November 11, 2011.

Unlike the Dutch court, the Danish, Italian, Irish and Belgian courts recently ruled ISPs are indeed obliged to block access to the torrent site the Pirate Bay.
 
Costs
Also interesting is the British case between ISP British Telecom (BT) and Usenet indexing site Newsbin2. Last July, the High Court ruled blocking access to Newsbin2 is a proportionate measure. Two days ago, following the High Court ruling, the British court ruled that BT does not only have to block access, but also has to pay the costs for the measures thereof (such as a filter). The judged ruled this is the price intermediaries (such as ISPs) have to pay for their indemnity within the E-Commerce Directive. The judge ruled:
 
“The exposure of intermediaries to an injunction under Article 8(3) is part of the price which they pay for immunity from claims for damages under Articles 12(1), 13(1) and 14(1) of European Parliament and Council Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (“the E-Commerce Directive”).”
 
References: The Register, TorrentFreak, BREIN