Blocking and delisting

Blocking and delisting are judicial or administrative measures ordered against technical intermediaries, mainly internet access providers and search engines, to prevent access to a website or content that infringes an intellectual property right, or to remove it from search results. In copyright and related rights, Article L. 336-2 of the French Intellectual Property Code allows the president of the judicial court to order any measure capable of preventing or stopping an infringement, against any person who may contribute to remedying it. This provision implements Article 8(3) of Directive 2001/29/EC and Article 11 of Directive 2004/48/EC.

Conditions for the injunction

The claimant, whether the right holder, a collective management organisation or a professional defence body, must establish the infringement of copyright or a related right caused by the content of an online public communication service. The intermediary need not be liable for the infringement: it is targeted because it is in a position to bring it to an end, which distinguishes this injunction from an action based on the liability of hosting providers. The court rules inter partes and assesses the proportionality of the measures in the light of freedom of expression, the intermediaries’ freedom to conduct a business and the expected effectiveness. The Court of Justice accepts that the injunction may leave the intermediary free to choose the technical means, provided they are sufficiently effective and do not deprive users of lawful access to information.

Measures ordered in practice

The French courts order access providers to block the domain names of massively infringing websites and search engines to delist them, for a fixed period, often twelve to eighteen months, with the possibility of updating the list of domain names to cover mirror sites. ARCOM (French audiovisual and digital communication regulator) may in addition request the blocking of mirror sites reproducing a site already held to be unlawful and, for sports broadcasts, the Sports Code provides for dynamic blocking under its supervision. The cost of the measures is generally borne by the intermediaries.

Limits and interaction with Union law

Blocking is circumvented by changes of address and virtual private networks, which explains the preference for dynamic injunctions. It applies only to copyright infringement and infringement of related rights, infringements of trade marks and patents falling under the general injunctions against intermediaries provided for by the specific provisions. The Digital Services Act expressly preserves the power of national courts to order such measures.

Key points

Blocking and delisting make it possible to reach infringing websites that are otherwise out of reach by targeting intermediaries, without having to establish their liability. The injunction requires proof of infringement and a proportionality review, and it benefits from dynamic drafting so as to cover mirror sites. Build a file of reports on the content of the websites, target all access providers and search engines, and plan for monitoring of enforcement.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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