How dynamic is a dynamic injunction? An analysis of the characteristics and the permissible scope of dynamic injunctions under European Law after CJEU C-18/18 (Glawischnig-Piesczek)

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Regular blocking injunctions, as they are currently applied, are merely unsuitable to effectively stop online infringements. Due to the technical structure of the internet, access blocks are easy to circumvent, and content can easily be re-hosted, re-uploaded or moved to a server abroad to further evade blocking measures. Over the past years, a new type of injunction to enforce online rights has emerged: the dynamic injunction.

Dynamic injunctions have the potential to solve the problem of continuously enforcing rights online. Unlike normal blocking injunctions, which are specifically aimed at certain content and a certain infringer, a dynamic injunction’s scope is not set in stone. In October 2019, the Court of Justice of the European Union concluded in C-18/18 (Glawischnig-Piesczek) that the use of dynamic injunctions is non-conflicting with European law, paving a way for these injunctions to be used more frequently.

This paper provides an analysis of dynamic injunctions’ characteristics and the permissible scope of this type of injunction under European law. It will show that dynamic injunctions are permissible, provided that these injunctions live up to the minimum legislative requirements and strike a fair balance between the fundamental rights of the parties involved. European law permits dynamic injunctions to include a broad range of uncertainty with regards to the legal subject of the injunction, though in contrast, the scope of the injunction’s content should be applied narrowly.

Based on this, it is concluded that dynamic injunctions can oblige an online intermediary to block access to active infringements during the proceedings, and to monitor its service for and block access to all future identical infringements to these initial infringements, irrespective of the party uploading the content. Furthermore, to prevent a general monitoring obligation and to safeguard against over-filtering, similar infringements to the initial infringements should only be proactively blocked after a right holder’s notification, or be specifically foreseen and described in the injunction.

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Original languageEnglish
JournalJournal of Intellectual Property Law & Practice
Issue number8
Pages (from-to)602-616
Number of pages14
Publication statusPublished - 27 Aug 2020

ID: 239304622