The emergence of the Internet has led to significant development in areas such as education, commerce, culture, research and entertainment. In addition, it has revolutionised the way in which people communicate by enabling low-cost, instant interactions on a global scale. In turn, this has increased the enormous potential for parties across broad sections of society to exercise their right to free speech.
However, despite all of these advantages, the Internet has had a detrimental effect on IP rights. The use of the world wide web to transmit ideas or information has generated a range of legal disputes. In this regard, a recent Supreme Court of Justice decision established new criteria concerning parties' rights to exercise free speech via the Internet and the ways in which this right may be restricted.
The case stemmed from an official communication issued by the Mexican Institute of Industrial Property (IMPI), which ordered an internet service provider (ISP) to restrict its users' access to 'www.mymusiic.com'. The order was based on a preliminary injunction which had been issued in a copyright infringement proceeding with respect to specific musical works that could be found and reproduced through the website without an authorisation of use from the works' owners. The ISP filed an amparo appeal (ie, an appeal which alleges a violation of constitutional rights by an authority) against the order, arguing that it violated its right to free speech.
The Supreme Court of Justice considered the legal relationship and boundaries between the right to free speech and the enforcement of copyright on the Internet. It established four non-obligatory criteria which reflect that the Internet is a fundamental instrument for exercising free speech.
In this regard, the court stated that while copyrights are recognised as human rights in the Constitution and various international treaties, any restriction that is imposed on the human right to exercise free speech on the Internet in an attempt to protect IP rights must be limited as much as possible. This means that the right to exercise freedom of speech via the Internet can be restricted only in exceptional circumstances. Therefore, the blocking of a webpage must be reasonable and proportional to the infringed rights.
Given the above, the court held that in order to be constitutional, a restriction of the right to exercise free speech on the Internet in order to protect IP rights must:
- refer to specific content;
- not be excessively broad; and
- comply with the requirements of necessity and proportionality.
In addition, the court established that a website can be completely blocked only where criminal acts under international law have occurred. Such acts include:
- terrorism;
- the advocacy of national, racial or religious hatred which constitutes discrimination, hostility or violence;
- genocide; and
- the dissemination of child pornography.
The court held that in all other cases, including the protection of IP rights, the restrictions must refer to specific content (eg, a musical work). General limitations on the operation of websites, as a general rule, were considered to be an inadmissible limitation of the right to information and free speech.
In other words, excluding in exceptional situations, general restrictions on a website's operation on the basis of copyright infringement will not be considered constitutionally valid, as they imply an unnecessary or disproportionate measure by:
- not focusing on sufficiently precise objectives; and
- depriving people of access to various content which is not classified as illegal.
An exceptional situation may occur where a website's entire contents infringe IP rights, which could enable the administrative authority to order the ISP to block an entire website.
The Supreme Court of Justice's decision means that copyright owners in an infringement proceeding must indicate the specific content of a website that should be blocked. Further, IP rights holders will now be duly assessed to ensure that they only request the block of infringing content.
For further information on this topic please contact Selene Villafaña at Becerril, Coca & Becerril SC by telephone (+52 55 5263 8730) or email (svillafana@bcb.com.mx). The Becerril, Coca & Becerril website can be accessed at www.bcb.com.mx.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
