Belgian regulator can ISP-block illegal online gambling sites, says court

A judgement handed down last month by Belgium’s Supreme Court – the Court of Cassation – in a long-running anti copyright piracy case has wider implications, especially in the online gambling industry.

In a study of the judgment this week the legal consultancy DLA Piper reports that the ruling confirmed the lawfulness of injunction orders against national Internet Service Providers, requiring them to block certain websites from Belgian internet users.

The court ruled that “…an examining magistrate in Belgium is entitled to order, in a single injunction, all national Internet service providers to block access to IP rights-infringing content which is hosted by a server, linked to a specific main domain name, and such by employing all possible technical means at their disposal or at least by blocking all domain names that refer to a specified main domain name.”

The ruling does not impose a general requirement that ISP’s monitor such sites, and, therefore, does not constitute a violation of Article 21(1) of the Belgian Act of 11 March 2003 on certain legal aspects of information society services (the “E-Commerce Act”) implementing Article 15(1) of the EC Directive 2000/31/EC of the European Parliament and the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (the “E-Commerce Directive”).

The case had been fought through several levels of the Belgian judicial system by three Belgian ISPs: Telenet, Tecteo and Brutele, who claimed that such orders constitute a violation of Article 52.1 of the Charter of the Fundamental Rights of the European Union and Article 21(1) of the E-Commerce Act, and that such orders failed (i) to specify the particular time limit within which the Internet providers were bound by the blocking obligation, (ii) to specify the particular means they had to employ to comply with the injunction order and (iii) to exhaustively list the domain names to be blocked.

In respect of the latter two grievances, the plaintiffs requested from the Court of Cassation to refer a question to the European Court of Justice for a preliminary ruling.

The Court of Cassation dismissed the ISP grievances and refused to refer the questions to the ECJ for a preliminary ruling.

DLA Piper concludes that it is appropriate to question whether the Court’s decision complies with EU rules prohibiting general monitoring, which holds that ISPs cannot be generally obliged to monitor the information which they transmit or store nor to actively seek facts or circumstances indicating illegal activity.

The law firm also notes that (Article 15(1) of the E-Commerce Directive), insists that judicial orders that are necessary to ensure the enforcement of IP rights must be fair and equitable, effective, proportionate and dissuasive, and must be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.

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