Clients are struggling to ban infringing goods from the
internet, we experience difficulties making payments because
our bank is under a Distributed Denial of Service attack and we
frequently receive phishing mails and spam. Despite this,
Pirate Bay and illegal streaming can be tempting (even to IP
The Hague Court in the Netherlands recently (January 24
2018), in the case of the Football Association Premier League
against Ecatel (C/09/485400 / HA ZA 15-367) forced an internet
provider to improve its control over our digital
The services of internet provider, Ecatel, are used in the
illegal streaming of Premier League matches. This, and the fact
that the visual reports are made available via streams without
permission from Premier League, is not in dispute.
Ecatel however, put forward a defence. Firstly, it stated
that football matches are not to be considered
copyright-protected work. This was rejected by The Hague Court.
In order to make a visual report, it is necessary to make
creative choices including the placement of cameras, what will
be visualized and when to zoom in or to move along with a
camera. In addition, the live commentary, national anthems or
other tunes and logos displayed on screen need to be taken into
Ecatel argued that it cannot be held liable for the
streaming. The Hague Court also rejected this, since according
to the court, Ecatel should be regarded as an intermediary as
mentioned in Article 26 of the Dutch Copyright Act.
Ecatel furthermore asserted that ordering it to act in case
of illegal streaming would be disproportional, undermining the
freedom of entrepreneurship. Again, The Hague Court dismissed
this argument. It ruled that Ecatel's effort and costs to
execute the order are likely to be rather limited, and the
consequence that legal content is also blocked can easily be
resolved by an adequate notice to take down policy.
The court decided that freedom of information is also
sufficiently taken into account as the requested order would
only apply to the duration of the infringing streams.
The fact that users can continue to stream via other servers
is no reason for the court to reject the claims either, since
the European Court of Justice decided in Telekabel/Wien, March
27 2014, C-314/12 that orders are to be considered effective as
long as they prevent unauthorised use of protected work or at
least make it more difficult, for instance by making streams
slower through the use of fewer servers and by forcing users to
restart their streams..
Lastly, the order does not conflict with the principle of
subsidiarity. The court does not see that there are other less
objectionable possibilities to achieve the goal desired by
Ecatel is therefore ordered to discontinue its service
– if it is used by third parties to infringe Premier
League's copyrights – within 30 minutes of receipt of
a report and to stop it for the duration of the match. If it
does not do this, there will be a penalty.
|Annelies de Bosch Kemper
Carnegieplein 5, 2517 KJ
Tel: +31 70 416 67 11
Fax: +31 70 416 67 99