Highlights of Internet-related jurisprudence in Europe (2014) Darian Pavli Open 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 /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”?