Lawyer Alessandro La Rosa
Digital pirates often try to overcome website blockages imposed by judicial and administrative authorities on network access providers, by creating new websites accessible through top-level or second-level domain names, that are partially different from those reached by blocking orders, to which the latter redirect: these sites, de facto, fully reproduce the contents of those initially blocked, and for such reason they’re defined “mirror sites“.
The European Commission, with the “Communication COM(2017) 708” of the 29th November 2017, has provided guidelines for the interpretation of Directive 2004/48/EC (c.d. Enforcement), by expressly recognising the admissibility of injunctions specifically aimed at preventing the phenomenon of mirroring, and acknowledging that injunctions, in certain cases, may “lose some effectiveness because of changes in the subject matter in respect of which the injunction was ordered. This may be, for example, the case of website blocking injunctions, where a competent judicial authority grants the injunction with reference to certain specific domain names, whilst mirror websites can appear easily under other domain names and thus remain unaffected by the injunction. Dynamic injunctions are a possible means to address this. These are injunctions which can be issued for instance in cases in which materially the same website becomes available immediately after issuing the injunction with a different IP address or URL and which is drafted in a way that allows to also cover the new IP address or URL without the need for a new judicial procedure to obtain a new injunction”. Soon after, on the 21st December 2017, the High Court of Justice of England and Wales confirmed what had already been previously established by the High Court of Justice Chancery Division (‘HCJ’) on a case where Football Association Premier League Limited (shortly followed by UEFA with a similar initiative), the owner of the Premier League filming rights, requested the adoption of a blocking order for the so-called “streaming servers“, to the major English connectivity service providers (including British Telecommunication PLC and Sky Uk Limited).
The peculiarity of HCJ’s decisions concerns the technical solution granted to rightholders: the injunction is not aimed (as in the past) at individual pirated websites, but directly at the servers from which the illegal streaming of content is originated. The blocking order, which HJC itself has defined as a “live blocking order“, is aimed at IP addresses specifically used by streaming server operators during each football match; IP addresses that must be “unblocked” once the football match is over. As the blocking is limited to the duration of matches, it will not affect the freedom of access providers to conduct business, which will be able to use already available technologies, without facing any additional costs. On the other hand, the rightholder will receive immediate and effective protection. In this framework, both the sequestration orders repeatedly issued by the Italian Criminal Judicial Authority, with object not only the current domain name of a given pirate site, but also the “relative aliases and current and future domain names, referring to the site itself“, and the very recent proposal of AGCOM for the amendment of the Regulation on the copyright protection, as per resolution no. 680/13/CONS which, precisely, provides for particularly rapid blocking procedures in cases of repeated violations already established, including through websites that are a mere reproduction of those already subject to previous blocking orders. On an international level, Russia has also recently adopted specific rules to contrast the widespread phenomenon of pirated “mirror” sites with the Decree 1225 of 7 October 2017: this regulatory instrument allows rightholders to obtain measures to block “mirror” sites with no need to obtain new orders from the judicial Authorities each time (as a result, more than 500 sites have already been blocked since the aforementioned Decree became effective).