Court rules on ISPs' responsibility to prevent infringement

The courts recently issued the first Greek judgment ordering internet service providers (ISPs) to take effective technological measures in order to prevent users from accessing websites which facilitate the illegal sharing and copying of digital copyrighted works. Within the framework of a preliminary measures action filed by collecting societies representing producers and authors of music, theatrical and audiovisual works against ISPs, Judgment 4658/2012 of the Athens First Instance Court dealt with the rights conflicts that arise in disputes between ISPs and rights holders over online copyright infringement.

Following a lengthy analysis of the relevant technical terminology and the legal background, the judge noted:

• The interplay between the rights of IP rights holders and the need to respect the fundamental rights of internet users, including the right to participate in the information society and the right to privacy.
• The significance of the principle of proportionality in measures affecting the exercise of such fundamental rights (a principle that is both enshrined in the Greek Constitution and a shared EU constitutional principle).

The judge further noted that the imposition of effective technological measures in order to prevent users from accessing such websites can be the subject of a court order within the context of preliminary measures proceedings, since such measures can be temporary and easily lifted, and would not create a permanent situation that is harmful to the rights and interests of ISPs.

In this respect, the Judge applied Article 64A of Law 2121/1993 (which implemented the EU Copyright Directive (2001/29/EC), which allows rights holders to seek and obtain temporary relief against an intermediary that enables through its network a third party's infringement of a protected work or other subject matter. 

This provision does not address the type of content which is entitled to such temporary relief, but only verifies that temporary measures may be ordered against intermediaries. Therefore, it does not provide a reliable guide as to the extent and gravity of temporary measures imposed on ISPs.

The judgment has been hailed by some as a major victory for Greek champions of IP protection, but has raised questions as to its compatibility with the recent SABAM judgments of the Court of Justice of the European Union. It is too early to tell whether this analytical judgment will be followed as jurisprudence on the relevant issues; however, at present it means that Greece is one of the jurisdictions where ISPs' immunity may be circumvented. The debate over the balancing of the implicated rights is not expected to calm down, particularly on the part of ISPs, which have been alarmed by the possibility that this judgment may constitute "good law" on the issue.