Home News The foiled Telegram blackout

The foiled Telegram blackout

April 5, 2024

These weeks we are witnessing the entanglement generated by an order of the Audiencia Nacional (Spanish National High Court) that sought to execute as a precautionary measure the blocking of the TELEGRAM messaging network, as a result of the complaint made by the communication groups MEDIASET, ATRESMEDIA and MOVISTAR PLUS for a crime of continuous infringement of intellectual property rights and that several account holders of the platform are allegedly engaging in disclosing protected content. 

We must bear in mind that in this type of conduct in the Internet environment TELEGRAM has, like any other similar platform or access service providers (the so-called ISPs), in principle and apart from more complex considerations, the status of a mere intermediary in the conduct, but the law does not consider it to be the direct executor of the same (art. 4.1 Regulation 2022/2065 of the Single Market for Digital Services). Therefore, their involvement in this type of process is necessarily instrumental, because they are in the best technical position to prevent the behaviours described by their users.  

Thus, the precautionary protection under Article 13.2 of the LECRIM that the Audiencia Nacional sought the temporary removal of the unlawful content, in order to avoid greater harm or damage that would be impossible to repair for the rightholders while the main proceedings were underway. As this measure had not been implemented “at source”, due to the inattention of the rogatory commission sent to the Virgin Islands for the platform to provide the data of the users ultimately responsible for these practices, the judicial body has tried to reformulate the approach and act “at destination”, where the impact of the infringement occurs.   issuing an injunction to the access providers in Spanish territory to block the platform. 

This option of acting against intermediaries has been presented in the media as an abuse or disproportion, but it must be said that this route has been provided for in our legislation for some time now, specifically since  Directive  201/29/EC on the Information Society (INFOSOC) was transposed into the Intellectual Property Law in 2006:   

art. 138 TRLPI (…) Both the specific injunctions referred to in Article 139(1)(h) and the precautionary measures provided for in Article 141(6) may also be sought, where appropriate, against intermediaries whose services are used by a third party to infringe intellectual property rights recognized in this Law, even if the acts of such intermediaries do not in themselves constitute an infringement (…) 

It is an option that is not only limited to the judicial sphere, but since 2011 it has also been possible to request it administratively, before the Intellectual Property Commission, a body attached to the Ministry of Culture and Sports, although the latter acts with a certain control of violation of fundamental rights and enforcement by the National Court itself.  

It is precisely here where it is necessary to contextualize a little the complexity that judicial protection presents in behaviours produced in the Internet environment, in most cases with many elements of extraterritoriality, with technological resources distributed in nodes and users outside the direct reach of the coercive capacity of the judicial bodies of a single country. 

The technological sophistication of the web environment means that the determination of the territory where the origin of an illegal conduct may be located has a dynamic nature or easily modifiable by the interested parties and this is a very important stumbling block for the judicial authorities when it comes to directing blocking orders to the relevant entities.  have that precautionary or definitive character.  

This particularity means that the blocking of a specific IP from which copyright infringing content is accessible may be replicated in a matter of hours on another one, located on a server in a third territory, thousands of kilometres away and without any connection to the judicial authorities that hear the matter, or it can also be avoided by the users themselves, through mechanisms of obfuscation of their IPs; the famous VPN networks that seem to be trading on the rise with each new controversy on controls of illegalities on the network. 

In Spain we have already had the opportunity to face this problem. In 2020 with the Elitegol, Elitegoltv, Veopartidosonline et al. case (SJM nº7 Madrid 2/2020 TELEFÓNICA AUDOVISUAL DIGITAL SAU, vs. VODAFONE, et al. “) the court issued a series of instructions to ISPs to update the addresses or web resources to be blocked on a weekly basis, a practice that has been reiterated by other similar subsequent pronouncements by several courts. 

For its part, the European Commission has been behind it for years and in fact already in 2021 it is going to carry out an exhaustive study on the adoption of dynamic blocking orders that aims to establish a series of lege ferenda recommendations  so that this type of legal action is not systematically circumvented and leaves the effective judicial protection of the rights of creators or holders of contents.  

However, there is no doubt that the collisions between copyright and other fundamental rights are the subject of constant attention by the Community legislature and the courts, as much as the Court of Justice of the EU (C-314/12 UPC TELEKABEL v. KONSTANTIN FILM et al.) has set out the two essential requirements that must be met by any blocking order, whether dynamic or not, in this delicate balance: 

(1) Must be strictly aimed at putting an end to the infringement of a third party’s copyright or related rights 

(2) They must not affect Internet users who use online services to lawfully access information. 

In addition to this fundamental balancing test, there are other tests relating to the proportionality of the measure, considering various parameters laid down in the general principles of EU law or national standards, depending on the country.  

In short, it seems that the telegram from the National Court was rushed, because now the same body has proceeded to withdraw the order; from PONTI & PARTNERS we will be attentive in case it mutates again in the telegraphic form of an ultimatum or an advance of a more overwhelming serial.  

Article by: Joan Salvà.

Managing Partner.
Lawyer. Registered IP Attorney. 

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