Belgium: Belgian Supreme Court Confirms Order Obliging Internet Providers To Block Access To Pirate Bay Websites

On 22 October 2013, the Belgian Supreme Court (Hof van Cassatie/Cour de cassation) handed down a judgment concerning the obligation of internet providers to block access to the content hosted by the server connected to the domain name "thepiratebay.org".

The case at hand relates to a criminal investigation against unidentified persons responsible for hosting The Pirate Bay, a website where movies, TV shows, games and music can be illegally downloaded. The website itself does not contain files, but provides a BitTorrent tracker for downloading via a peer-to-peer network.

In the context of these criminal proceedings, the investigative judge at the Court of First Instance of Mechelen requested on 6 April 2012 to impose an order on all Internet providers in Belgium, based on Articles 39bis and 89 of the Belgian Criminal Procedure Code (Wetboek van Strafvordering/Code d'instruction criminelle). These provisions state that the rules on seizure measures can also be applied to copying, making inaccessible and deleting information stored in a computer system. The request sought to impose an obligation on all internet providers to take all possible technical measures to prevent internet users from having access to the content hosted on The Pirate Bay's servers. Providers should not only block the main domain name, "thepiratebay.org", but also all domain names that refer to the server connected to that domain name. The list of domain names that had to be blocked was defined by using the technique "reverse IP domain check". The request also sought to entrust the Regional Computer Crime Unit ("RCCU") of Mechelen and the Federal Computer Crime Unit ("FCCU ") with determining the list of domain names and informing the operators of this list. Blocked domain names should refer to the Government's stop page.

Internet providers Brutélé, Tecteo and Telenet first appealed against the request with the pre-trial chamber (Kamer van inbeschuldigingstelling/Chambre des mises en accusation) of the Antwerp Court of Appeal. On 14 February 2013, the pre-trial chamber rejected the internet providers' appeal. The internet providers then brought a further appeal to the Belgian Supreme Court.

First, the internet providers claimed that the order did not comply with Articles 35 to 39bis, 55, 56 and 89 of the Belgian Criminal Procedure Code. According to them, the seizure measure can only be used to collect evidence rather than prevent copyright infringements or damage to the plaintiff. The Supreme Court rejected the claim, holding that the appeal decision legitimately held that the mentioned provisions authorise the investigative judge to take preliminary injunctive measures. The Supreme Court added that the appeal decision sufficiently justified these measures by referring to the necessity of terminating the damage to the civil party in the proceedings.

Second, the internet providers contended that Articles 39bis and 89 of the Criminal Procedure Code and Article 21, § 1 of the Law of 11 March 2003 on certain legal aspects of the services of the information society (Wet betreffende bepaalde juridische aspecten van de diensten van de informatemaatschappij/Loi sur certains aspects juridiques des services de la société de l'information) did not provide a legal basis to issue an order to block access to all domain names of "The Pirate Bay". They argued that these provisions are directed at those storing the content and not at the internet operators that are merely providing access to a communication network without having any management control over the content. But the Supreme Court held that the claimants incorrectly claimed that the request sought to impose a temporary monitoring obligation contrary to Article 21 §1 of the Law of 11 March 2003 and declared claimants' articles which related to this provision to be inadmissible.

Finally, the internet providers contended that the order must clearly define which domain names should be blocked, for how long and what technical means the providers should adopt. However, the Supreme Court held that the requested measures did not amount to a general monitoring obligation (which is precluded under Article 21 §1 of the Law of 11 March 2003). The claimants then maintained that the reasoning of the judgment under appeal was contradictory because it held, on the one hand, that the blocking measure was not considered to amount to a general monitoring obligation, while, on the other hand, stating that the blocking measure is only a minimal obligation that forms part of a larger order. The Supreme Court rejected the argument holding that the statements are not contradictory.

The Belgian Supreme Court rejected all arguments by the internet providers and confirmed the appellate judgment thus opening the way for an order to block access to the "Pirate Bay" websites.

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