Monday Miscellany

Mr António Campinos, President of the European Patent Office, will be making his first official address to a UK audience on Thursday, 12 September 2019 at the biennial UNION-IP summer drinks reception.  

The IP Law Summer School will be held August 12-16 in Cambridge, UK. IPKat readers enjoy a 15% discount in the registration fee, by using the VIP code FKW82944IPKE

The 38th ATRIP Congress will take place in Nashville August 25-28. 

In Glawischnig-Piesczek, C-18/18, the CJEU has been asked to provide guidance on the breadth and scope of Article 15 of the E-commerce Directive, and thereby address the removal obligations of an online intermediary (eligible for the hosting safe harbour) as arising from an injunction obtained against it. In his Opinion, AG Szpunar advised that Article 15 does not prohibit a court from ordering an intermediary to seek out and remove all content identical to that found illegal in relation to all users of its platform, as well as content equivalent to that found illegal, though the latter only in relation to the original user/poster. Equivalent information disseminated by other users should be removed when an intermediary becomes aware of it through a notification made by the concerned person, third parties or another source (as Article 14 of the E-commerce Directive in any event envisions). The Opinion also submits that, in principle, a court or authority considering an application for an injunction based on an unharmonized national right might order removal worldwide. 

Like AG Szpunar’s Opinion, this contribution submits that national courts or authorities should undertake close scrutiny when issuing injunctions against intermediaries, envisage time limitations for them, and monitor their effects. This said, the approach recommended in relation to the material and personal scope of removal obligations might be hardly workable in practice without also entailing a general monitoring obligation on the side of the relevant intermediary. In any case, it should be possible for the subject who posted the original information found illegal, users of the services provided by the intermediary targeted by the injunction, and the intermediary alike to intervene to vary or discharge the order issued. In addition, the potential availability of worldwide injunctions based on unharmonized rights – as envisaged in the Opinion – is problematic, also from a policy standpoint. As such, it should be considered extrema ratio.