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Swiss Federal Supreme Court Proclaims ISPs Cannot Be Forced To Block Access Of Illegal Websites

August 27, 2019

The Swiss Federal Supreme Court in its Judgement 4A_433 / 2018 dated February 08, 2019 held that the Internet Service Providers cannot be forced to block websites containing copyrighted content which are made illegally available on their portals. Brief facts of the case, the plaintiff was the owner of partial copyrights of the film which were being made available on the illegal websites of the third parties which were on the server of the Internet service provider. The plaintiff prayed before the lower courts and the Supreme Court, to direct the internet service provider to block access of these websites. The Court while denying the prayers observed that the access provider does not have any concrete contribution to the content provided by the third-party portals. Since no adequate causal connection to the copyright infringement could be justified, therefore an injunction against the access providers was denied by the Court.
The Swiss Federal Court, however, made an observation that a regulation for the integration of access providers to combat copyright infringement on the Internet with appropriate procedures and technical blocking measures would be taken by the legislator. However, the introduction of appropriate regulatory measures against access providers has so far been waived. The draft bill for Copyright Act amendment of 2017, provides for a “stay down” order which directs Hosting Providers to remove infringing content and once removed to keep such content removed. The draft bill also clarifies that the processing of data for the purposes of prosecuting copyright infringement will be permissible. Both of these measures end a long debate on the obligations of providers and therefore create legal certainty for all parties. In view thereof, it can be said that even though the Court passed an order against the plaintiff, however, the Court also understands the need for regulations which can help in combating the copyright infringement matters by illegal online portals.
The judgment of the Swiss Federal Supreme Court differs largely when considering the Indian laws, as in India the provisions for intermediary liability under the IT laws is a strong check for testing the acts of intermediaries. Even though, the practice in India is also similar, wherein the intermediary has been given a safe harbour protection, where such intermediary only provides for a platform and has no role in content regulation or contribution in managing the contents on its portal. However, the Courts in India have put strict checks while determining if the platforms are actually an intermediary or have further cause to contribute towards the infringement.
With respect to laws in place, the major laws which govern the process in online portal infringements, are Information and Technology Act 2000, The Information Technology (Intermediaries Guidelines) Rules 2011 and Copyright Rules 2013. In a brief, the provision wherein the intermediary can claim safe harbour are clearly laid down under section 79 of the IT Act, however, the procedures to be followed by the Intermediary in order to avoid any violation is provided under the guidelines of 2011. Similarly, under the Copyright laws, the storage provider if satisfied of infringement, when a complaint is received, then the access provider must take measures to refrain the facilitating access for a period of 21 days from the date of complaint or an order in this regard from competent court, whichever is earlier.
With the internet service providers and online platforms playing a crucial role in giving access to third party websites, to provide unauthorized information / copyrighted works to the public at large, it is now essential to keep a strict guideline in ensuring protection of intellectual property of the owners. Rather than keeping it dependent on case to case basis, the law makers may consider amending the Acts to incorporate the factors to determine role and contribution of the intermediaries, in its services.

1See for the current law review the message of 22 November 2017 amending the Copyright Act and approving two agreements of WIPO and their implementation, BBI 2018 607
2Press Release, The Federal Council, 22.11.2017:
https://www.ejpd.admin.ch/ejpd/en/home/aktuell/news/2017/2017-11-221.html

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