The Belgian Court of Cassation recently confirmed an order by an investigative judge to block all domain names leading to the filesharing website, “The Pirate Bay”.
In April 2012, an investigative judge issued an order to Telenet, a Belgian Internet Service Provider (the “ISP”) to block all domain names leading to the server of the Pirate Bay. Consequently, the ISP contested this order in court in order to obtain the rescission of the order for lack of legal grounds, and at least to obtain more clarity on the modalities of the order and how to comply with it.
The petition of the ISP was dismissed twice by the lower courts, so that the ISP had to turn to the Court of Cassation. In its judgment of 22 October 2013, the Court of Cassation confirmed the decisions of the lower courts.
The ISP firstly argued that Articles 35 to 39bis of the Code of Criminal Procedure (“CCP”) only envisages fact-finding, but is not intended to prevent further perpetrations of such alleged infringements. The Court dismisses this argument stating that the Articles cited can be used not only for fact-finding, but also to stop certain acts which appear to constitute a criminal offence, or to protect civil interests.
The ISP further argued that Article 39bis CCP is directed to those who store or allow data to be stored, and not at those who merely provide access to the communication network and who have no power to control or dispose of these data. Likewise, the distraint order based on Article 39bis CCP is only aimed at sealing the IT system in order to safeguard the integrity of the data, and that this is impossible in this case, as the operators of the Pirate Bay can still gain access to their servers. Here again, the Court rejects this argumentation.
Lastly, the ISP also brings up the E-commerce Act and the prohibition contained therein to impose a general monitoring obligation. The ISP argues that the order does not specify the means that it should use to comply with the obligation imposed on them. Furthermore, it does not exhaustively list the domain names which should be blocked, nor does it contain a limitation in time. The ISP therefore asks the Court to refer several questions to the European Court of Justice, in order to know whether the order is compatible with EU legislation.
The Court however, ignores this request and simply declares that the order given to an ISP to block, by all technical means, all domain names that refer to the Pirate Bay Domain name, does not constitute a general monitoring obligation. The Court does barely elaborate on the motives for this decision.
