Ireland IP & Technology Law Blog : Dublin Lawyers & Attorneys for Intellectual Property, Communications & Information Technology Law in Ireland, U.S. & England

The European Commission published today a package of legislative proposals in a bid to ensure that all EU consumers can resolve disputes with traders without recourse to the courts. The proposal envisages that the European Parliament and the EU Council will adopt a Directive which requires Member States to ensure that competent alternative dispute resolution entities (“ADR entities”)will be available throughout EU to which consumers may refer any contractual dispute with a trader.

The package also includes a proposal for a Regulation to establish an EU-wide online platform to facilitate the resolution of disputes related to the cross-border online sale of goods or provision of services between a consumer and a trader. It is proposed that this online platform will automatically send the consumer’s complaint to the competent national ADR entity and facilitate the resolution of the dispute within 30 days.

In support of the new proposals, John Dalli, the Commissioner for Health and Consumers stated “Once adopted, the proposals that I am putting forward today, will help European consumers to use easy, quick and inexpensive ways to sort out their problems, wherever and however they purchase a product or service in the EU”.

The European Parliament and the EU Council have committed to adopting the package by the end of 2012 and it is anticipated that Member States will have taken measures to ensure competent ADR entities are in place by mid 2014, with the single EU-wide platform for online dispute resolution becoming fully operational six months later.

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The ECJ has, in a judgment released today (Scarlet Extended SA (“Scarlet”) v Societe belge des auteurs, compositeurs et editeurs (“SABAM”), Case C-70/10), indicated that an order requiring a Belgian internet service provider to filter certain peer to peer files is not permissible under EU law.

The cour d’appel de Bruxelles referred questions to the ECJ following an appeal from a decision of the Tribunel de premiere instance in which Scarlet was ordered to implement filtering technology to prevent unlawful file sharing on its network. The question referred to the ECJ was, in particular, relevant to the interpretation of the Directive 2000/31/EC (the “E-Commerce Directive”), Directive 2001/29/EC (“the InfoSoc Directive) and Directive 2004/48/EC (“the Enforcement Directive”) and whether the provisions of these Directives permit Member States to authorise national courts to “issue injunctions against intermediaries whose services are used by a third party to infringe a copyright or related right”.

Both the InfoSoc Directive and the Enforcement Directive provide that intellectual property rights holders may apply for an injunction against intermediaries such as ISPs whose services are being used by a third party to infringe their rights. The ECJ held that it was a natural corollary of this that national courts could order ISPs to prevent future infringement. However, the Court held that any implementation of the InfoSoc Directive and Enforcement Directive should not affect the provisions of the E-Commerce Directive and more particularly the provisions of that Directive that relate to the “mere-conduit”, “caching” and “hosting” defences which can be relied on by Internet Service Providers and furthermore, the provisions of Article 15 which state that no general internet network monitoring obligations can be imposed on ISPs. 

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Two recent cases which were jointly heard before the Court of Justice (Joined Cases C-509/09 and C-161/10 - eDate Advertising GmbH v X and Olivier Martinez, Robert Martinez v MGN Limited), have resulted in a useful clarification of the law in relation to jurisdiction in circumstances where allegations of defamation have been levelled against a party who operates an online publication. The Court considered the wording of Council Regulation (EC) 44/2001 and, in particular, it was asked to clarify the meaning of Article 3(2) of the Regulation which provides that;

A person domiciled in a Member State may, in an other Member State, be sued in matters relating to a tort, delict, or quasi-delict, in the courts for the place where the harmful event occurred or may occur”.

The Court held that a person who alleges that a defamatory statement has been made on the internet “may bring an action in one forum in respect of all of the damage caused, depending on the place in which the damage caused in the European Union by that infringement occurred.”

The Court also acknowledged that “Given that the impact which material placed online is liable to have on an individual’s personality rights might best be assessed by the court of the place where the alleged victim has his centre of interests, the attribution of jurisdiction to that court corresponds to the objective of the sound administration of justice.”

This is a welcome clarification of the issue of jurisdiction as it relates to cases involving alleged online reputational damage.

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The British Phonographic Industry (BPI) has requested BT to use its own software to block users from accessing “Pirate Bay”, a website which provides access to illegal downloads of music, film and game files. While it does not store content, Pirate Bay facilitates access to sites which breach copyright via an index of links. 

BT has stated that, while it is considering its response, it will require a Court order to put measures in place to block access. As you may recall from a blog post earlier this year, the UK High Court previously ordered BT to block access to the site “Newzbin2”, which similarly provided access to illegal download sites via links collated on its site.

It remains to be seen whether BT can maintain its current approach which requires complainants to proceed with the costly process of obtaining a High Court Order, before it will block access.

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The European Commission has published a proposal for a Regulation on an optional Common European Sales Law. It is envisaged that the Common European Sales Law will exist alongside each Member State’s national contract law as a second, alternative, contract law regime available to consumers in cross-border situations.  The Commission has stated that the 27 different sets of contract law rules which currently exist in the EU act as a deterrent for both businesses and consumers to shopping and trading across EU borders.   

Justification for proposal 

The Commission has justified the proposal on the grounds that companies will benefit from one (optional) uniform regime of contract law in all 27 Member States, as traders will “no longer need to wrestle with the uncertainties that arise from having to deal with multiple national contract systems”. 

The Commission believes that, if adopted, the Regulation will also cut transaction costs for companies wishing to trade cross-border, and help small and medium-sized companies to expand into new markets.

Consumers are expected to benefit from having the same level of consumer protection in all Member States, having a wider choice of products at lower prices, and from certainty about their rights in cross-border transactions.

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