Website operated outside European Union blocked
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For the first time, the Barcelona Criminal Court Number 32 has ordered the blocking of a website operated from outside the European Union as a precautionary measure (Case 5597/2007, December 17 2007, released in March 2008).
The owner of a well-known registered trademark filed suit against the owners of a Chinese website which sold and offered for sale counterfeit products. The trademark owner requested that the website be blocked.
In practice, blocking a website means that the domain name is made inaccessible to users who receive internet access (in this case, through Spanish servers). The claim was brought under Article 129 of the Spanish Criminal Code. Article 129 provides that, in addition to a penalty, certain additional measures may be taken, two of which are preventive in nature:
- closure of the defendant's company, business or establishment; or
- suspension of the defendant's company, organization or activities.
Despite recognizing that the blocking of a website is similar to either of these measures, the court highlighted the existence of a formal problem. Under the law, such measures can be taken only after a hearing where the following parties are present:
- the public prosecutor; and
- the owners or representatives of the company that will be affected by the measure.
Taking into account that the owner of the domain name at issue resided in Fujian (China), the court held that it would be impossible to organize such a hearing.
As the case could not be resolved under Article 129 of the Criminal Code, the court turned to EU law - more specifically, the E-commerce Directive (31/2000), which was implemented in Spain through Law 34/2002 (known as the Information Society and E-commerce Law).
The Information Society and E-commerce Law imposes obligations and responsibilities (in general, obligations of cooperation) on internet service providers, but not on domain name owners. Specifically, Article 8 of the law provides for the possibility of restricting the provision of internet services where:
- a criminal investigation is taking place; or
- the protection of consumers and/or users is being jeopardized.
According to the court, the present case fell within either of these two provisions. The court emphasized that precautionary measures must be objective, proportional and non-discriminatory. In the case at hand, the court found that the blocking of the website was objective based on the evidence of criminal activity uncovered by the police investigation. It also found that the measure was proportional, holding that the losses that the domain name owner might suffer due to the cessation of its activity within the Spanish territory was balanced by the losses incurred by the trademark rights owner. The court did not assess the requirement of non-discrimination; it is understood that the court tacitly agreed that this requirement had been met.
Based on the foregoing, the court ordered the blocking of the website at issue until the conclusion of the investigative phase of the proceedings.
Marta Giménez-Zapiola, Grau & Angulo, Barcelona
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