The case was brought by Austrian film production companies, which sought an injunction to force an Austrian ISP to block access to a website that enabled users to watch or download films that infringed the companies' copyrights. An Austrian court granted the injunction. Austrian law permits a somewhat unusual form of order, which does not spell out the steps that the court requires the ISP to take, but is focused on the end result; that the ISP must take all reasonable steps to block access to the website. How it does so is up to the ISP.

The ECJ was asked to decide whether website-blocking injunctions could be granted against ISPs and, if so, whether the Austrian form of order was permitted under EU law.

The legal basis for any website-blocking injunctions in the EU is Article 8(3) of the Information Society Directive (91/250/EEC) (the Directive), which requires EU member states to enable rights holders to apply for injunctions against intermediaries whose services are used by a third party to infringe copyright. Recital 59 of the Directive explains that an intermediary is a person who carries a third party's infringement in a network. The general understanding and the approach of the English courts is that this applies to ISPs, such as broadband providers.

The ECJ agreed that this applies to ISPs, which it regards as inevitable actors in any transmission of an infringement, as they make that transmission possible. But, although the ECJ's judgment talks elsewhere about access providers, the "inevitable actor" language may considerably extend the class of parties that can be injuncted. Many things need to happen for these infringements to be possible, and providers of services such as domain name registrars, cloud platforms, advertising platforms and payment providers, could all potentially fall within this broader definition.

There are limits to what an ISP can be expected to do and, as technology advances, what is possible and effective changes. A court faced with a website-blocking application has to strike a fair balance between conflicting fundamental rights; that is, the right holder's copyright, the ISP's right to conduct a business and users' rights to access information. In achieving that fair balance, the court has to consider proportionality. For example, in an earlier case on website-blocking, the ECJ held that the ISP in question was being required to do too much as its fundamental rights were being impaired (Scarlet v SABAM C-70/10).

In Telekabel, the ECJ held that the Austrian form of injunction was legal. It did not breach the ISP's right of business freedom because the order allowed the ISP to determine what measures to implement and, provided that these were reasonable, it would satisfy the injunction. The ECJ said that the measures did not have to stop every single infringement, but must make access to the copyright works difficult to achieve or at least seriously discourage users from accessing the copyright works.

The ECJ also said that, to take account of the fundamental rights of users to access information, the measures need to go no further than necessary and must be strictly targeted. This is in line with evolving ECJ jurisprudence from cases such as Nintendo Co Ltd and other v PC Box Srl and Football Association Premier League Ltd and others v QC Leisure and others; Karen Murphy vMedia Protection Services Ltd, which have established that copyright does not excuse broad fetters on consumer freedoms (C-355/12, www.practicallaw.com/5-558-4886; joined cases C-403/08 and C-429/08, see News brief "Pubs, football and decoders: the end of exclusive content licences?").

The decision is undoubtedly helpful for rights holders, especially if they are able to argue that it opens up a potentially wider class of service providers, which may now be more vulnerable to injunctions. Service providers will be less happy as the measures that they may need to take to block access to the copyright material will be constantly evolving. It would have been helpful for service providers if the ECJ had been more specific about the steps that they could be required to take, but this would have been at odds with the determinedly technology-neutral approach that the ECJ prefers, as a means of future-proofing its decisions against technological change.

Telekabel is unlikely to significantly change the approach of English courts in granting website-blocking injunctions, and the earlier English cases would almost certainly have been decided in the same way. In each case, the High Court has considered its discretion to make the orders and whether the injunction would be proportionate (see box "Previous High Court decisions").

What has perhaps been lacking in English cases until now is arguments made on behalf of users, no doubt in part because an effective user voice has been lacking. The ECJ makes clear that such a voice needs to be heard by the court, if requested.