Judgment No. 115/2018 of the Provincial Court of Barcelona of 20 February (ECLI:IS:APB:2018:1317). Intellectual property. Action for an injunction against internet service intermediaries. Defendant’s standing.

The Asociación de Gestión de Derechos Intelectuales (AGEDI) (Association for Managing Intellectual Rights) files a claim for a declaratory judgment against a number of telecommunication companies asking that the defendants be ordered to adopt the measures required to prevent access from within the Spanish territory to the web page www.exvagos.com. The claims are brought under the Spanish Intellectual Property Law, which enables requiring entities that provide telecommunication services to cease activity on the network that may be carried out by parties infringing intellectual property rights.

The defendants file an objection against the claim, but the objection is dismissed by the Commercial Court, which considers that the web page at issue infringes the intellectual property rights managed by AGEDI and that the defendants are service intermediaries characteristic of the information society. Furthermore, according to Article 138 of the LPI (Spanish Intellectual Property Law), the claim does not have to be filed against the infringer, nor is there a need for there to be a prior formal declaration of infringement.

The defendants file an appeal before the Provincial Court, claiming that they cannot be held liable for possible infringements that may be committed from various web pages.

The issue being debated is whether or not it is possible to force upon an intermediary the duty to cooperate in ceasing an infringing conduct.

The Provincial Court considers that it is possible, although this does not mean that the intermediaries can be charged with infringement, bearing in mind the provisions of Articles 138 and 139 of the LPI, which allow requesting “injunctive measures” against “intermediaries whose services are used by a third party to infringe intellectual property rights,” as also put forth in case law handed down by the Court of Justice of the European Union, which obliges intermediaries providing services to infringing web pages to suspend said services in order to bring an end to the infringement. The very important role that Internet providers play in fighting against piracy is thereby acknowledged. The Provincial Court dismisses the appeal, thereby upholding the judgment under appeal.