Highlights of Internet-related jurisprudence in Europe (2014)

Darian PavliOpen Society Justice Initiative

• Delfi v. Estonia (ECHR)

– GC judgment pending: liability of news portal for defamatory reader comments

– Cf. CJEU ruling in Papasavvas: no ECD safe harbor for own news content

• Deckmyn v. Vandersteen (CJEU, Case C 201/13‑ )

– Re: parody exception to copyright– Parody of cartoon character used in xenophobic

ad by anti-immigration party– Ruling: parody if “noticeably different” from

original work and “expression of humor or mockery”

– But rights holder can object if parody contains discriminatory message…

• UPC Telekabel Wien (CJEU, Case C-314/12)

– First ruling to allow for open-ended injunctions against providers to prevent IP violations

– ISPs should take all reasonable measures but no ‘unbearable sacrifices’

– Blocking measures must be ‘strictly targeted’ and comply with fundamental rights of internet users

– Users should be able to challenge the measures adopted by the ISP

– Austrian court: user standing and cause of action (maybe) grounded in contract law

• Cartier v. BSkyB (UK)

– First European blocking injunction for trade mark violations (counterfeit goods websites)

– Granted despite lack of statutory basis in UK law– Relied on general jurisdiction and EU Enforcement

Directive– Access providers, site operators and ordinary users

can challenge the injunction– Currently on multiple appeals

• Akdeniz v. Turkey (ECHR, app. 20877/10)

– Challenge to blocking of online music sites at the request of Turkish rights holders

– Turkish courts denied ‘simple user’ standing– ECHR: applicant not a ‘victim’ of Art. 10 violation:– (a) he had alternative means of access to the same

content, which was not of ‘special interest’ to him (cf. Khurshid Mustafa case)

– (b) states have greater leeway to regulate commercial speech

TO WATCH IN 2015:

• ECHR: two challenges to the UK surveillance regime by Big Brother Watch et al; and BIJ

• CJEU: case 484/14 McFadden: injunctions against open Wi-Fi networks to prevent copyright infringement by users

• EU: a new General Data Protection Regulation… fine-tuning “the right to be forgotten”?