If you are an intermediary offering online services in Belgium, sooner or later you will most likely face an ex parte injunction that will prevent you from offering your services to one or more customers, if those customers are allegedly involved in copyright infringements or unlawful gambling activities.
Search engine operators, internet access providers, domain name registries, internet payment providers, host providers, domain name managers, DNS administrators and the like have recently become the targets of copyright owners and of persons fighting against unlawful gambling in Belgium.
Fighting against online copyright infringements and unlawful gambling activities can be frustrating because the infringers are often unidentifiable and move their infringements quickly from one online place to another.
To help the victims, the Belgian legislature adopted two laws, one to combat copyrights and related rights infringements on the internet, and the other to combat the exploitation of unlawful online games of chance. Under both laws, new provisions were inserted in the Code of Economic Law (CEL) that entered into effect on 1 June 2024 (Art. XVII.34/1 and following CEL). This year the courts rendered their first decisions.
The first three decisions were published by the newly created Office for combating piracy online, which is part of the Federal Public Service Economy and can be contacted via its website. More decisions will be published shortly as new cases are pending.
The new laws allow the holders of copyrights or related rights as well as persons fighting against unlawful gambling to file an ex parte request with the president of the Brussels Enterprise Court and claim provisional measures against all kinds of intermediaries that are involved in managing content online. The scope of intermediaries is really broad: all undertakings offering services that are used for the alleged online infringements fall within the scope of the law and may at any time face an ex parte injunction.
The case can be brought before the president of the court in contradictory proceedings, with a subpoena, but in practice the plaintiffs prefer the alternative road that the law provides: the ex parte request. Why would a plaintiff sue the intermediaries in their respective jurisdictions with all the bailiff and translation costs and the lengthy and time-consuming arguments in court, if that plaintiff can just file an ex parte request and obtain a decision within eight working days, without the intermediaries being heard?
The new laws not only offer a very low threshold at which to start legal proceedings (the ex parterequest), they also allow the plaintiffs to obtain dynamic injunctions with the help of the newly created Office for combating piracy online. When the president of the court renders a decision, the Office will decide within which time frame the intermediaries must take steps to comply with the court decision. In the first case, which concerned the unlawful streaming of football matches, the Office ruled that access to the infringing websites had to be blocked 1.5 hours before the start of each match. The Office may also provide a list of new websites or URLs to which the infringers have moved the unlawful content, and the measures imposed by the court will also be valid for those new online locations. The legislature hopes that such dynamic injunctions will stop online copyright infringements and unlawful gambling more easily.
This is all excellent news for the copyright owners and for persons fighting against unlawful gambling, but less so for the intermediaries. They have done nothing wrong, but still have to comply strictly with the court decision and with the measures fined-tuned by the Office for combating piracy online. If they do not comply, severe penalties may apply! In one case, the court imposed a penalty of EUR 500,000 for any intermediary not complying with the court decision. A small technical mistake or oversight may have dire consequences for the intermediary, which does not seem fair.
A second negative element for the intermediaries relates to the costs. If an intermediary is ordered to block access to one website, the cost remains relatively low. But the court can order that the access to several hundreds of online locations must be blocked, and those locations may change every day. This comes at a considerable cost for the intermediaries, and in one case the Brussels court has already ruled that the intermediaries are liable for those costs. This seems to be unfair and hopefully the court will adopt a more nuanced approach in later decisions.
