## Facts

- Film rightsholders owned copyright or related rights in films made available without authorization on the website kino.to.
- UPC Telekabel, an Austrian internet access provider, did not operate kino.to and had no contractual relationship with its operators.
- The rightsholders sought an injunction requiring UPC Telekabel to block customer access to kino.to.
- A trial court ordered blocking; the appellate court affirmed the blocking obligation but did not mandate specific blocking techniques.
- UPC Telekabel argued it was not an “intermediary,” that subscriber infringement was unproven, and that blocking would be costly, easily circumvented, and disproportionate.
- Austria’s Supreme Court referred questions to the Court of Justice of the European Union (CJEU) on the interpretation of Directive 2001/29/EC and the compatibility of blocking injunctions with fundamental rights (including freedom of information and freedom to conduct a business).

## Issues

1. Whether an internet access provider is an “intermediary whose services are used by a third party to infringe” under Article 8(3) of Directive 2001/29/EC when users use that access to reach an infringing website.
2. Whether EU law and protected fundamental rights permit an injunction requiring site-blocking while leaving the choice of technical measures to the access provider, even if measures can be circumvented and may not fully eliminate access.

## Decision

- The CJEU held that an operator who unlawfully makes protected works available online uses the services of access providers whose customers access that content; therefore, such access providers qualify as “intermediaries” within Article 8(3).
- The CJEU held EU law does not preclude a blocking injunction that does not specify the measures to be used, provided national implementation satisfies conditions that protect competing fundamental rights.
- The injunction is compatible with EU law if the provider can avoid coercive penalties by showing it took all reasonable measures, and if the measures prevent unauthorized access or at least make it difficult and seriously discourage access.
- The injunction must not unnecessarily deprive users of lawful access to information, and national procedures must allow effective judicial review once implementing measures are known.
- The matter was returned to the referring court to apply these standards to the dispute.

## Legal Principles

- Article 8(3) of Directive 2001/29/EC covers access providers as intermediaries even without any contractual relationship with the infringing website operator, because the provider’s service is an indispensable conduit for user access.
- A blocking injunction need not guarantee complete cessation of infringement; it is sufficient if the measures meaningfully hinder and seriously discourage access to infringing content.
- Non-specific blocking orders may be lawful when they preserve the provider’s discretion to choose methods and avoid de facto strict liability through an “all reasonable measures” standard.
- Measures must be targeted to end or prevent infringement and must not overblock lawful content; restrictions that prevent lawful access must be excluded.
- Effective judicial protection requires that affected users (and the provider) can challenge the proportionality and effects of the implemented measures in court.

## Conclusion

The CJEU recognized access providers as injunction-capable intermediaries in online infringement and approved non-specific website-blocking orders, so long as national enforcement requires reasonable, targeted measures that seriously discourage infringement, avoids unnecessary interference with lawful information access, and allows effective judicial review.


UPC Telekabel Wien GmbH v. Constantin Film Verleih GmbH, Case C-314/12 (C.J.E.U. 2014)