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26 August 2008
For the first time in Spain, Barcelona Criminal Court 32 has ordered the blocking of a website operated from outside the European Union as a precautionary measure. The measure was adopted based on the claim filed by the owner of a well-known registered trademark against the owners of a website operated from China which offered and sold counterfeit products. In practice, blocking a website means that the domain name is made inaccessible for users who receive internet access - in this case through Spanish servers.
The measure was requested on the basis of Article 129 of the Criminal Code, which provides for certain additional measures to the principal penalty imposed. Two of these can be applied preventively: (i) closure of the company, its business or establishment (paragraph a); and (ii) suspension of the company, foundation or organization's activities (paragraph b).
Although blocking a domain name can be analogous to either of these measures, the judge recognized a formal problem: the law provides that such measures can be applied only following a previous hearing with the public prosecutor and the owners or representatives of the company that will be affected by the measure. This means that the specific application of the preventive measure depends on the hearing taking place with the parties involved before the judge. Taking into account that the owner of the domain name resided in Fujian, China, organizing such a hearing appeared to be impossible in this case.
With the option of Article 129 of the Criminal Code ruled out, the judge turned to EU law for a solution - specifically the EU E-commerce Directive (31/2000/EC) and the EU Consumer Protection Directive (27/1998/EC), both of which were implemented into Spanish law through the Information Society Service and E-commerce Law (34/2002). The 2002 law established the obligations and responsibilities of service providers which transmit, store and locate data on the Internet. In general, these duties involve cooperation to prevent the spread of certain illicit services and content. Specifically, Article 8 of the law provides for the possibility of restricting service provision for reasons of a criminal investigation (paragraph a) or consumer protection (paragraph b). The case at hand fulfilled both criteria.
As preventive measures restrict rights, they must fulfil the conditions of objectivity, proportionality and non-discrimination.
The judge concluded that there was no doubt that the blocking measure was objective and in proportion to the case. The objective nature was based on the evidence of criminal activity that arose from the previous police investigation. Regarding proportionality, the judge considered that the losses that the domain name owner might suffer due to the cessation of activity in Spain was equal to losses suffered by the owner of the registered trademark right which was infringed in the case. No analysis of the non-discrimination requirement was made, so it must be assumed that it was tacitly respected.
Therefore, the judge agreed to impose the requested preventive measure until the conclusion of the investigative phase.
In this case the judicial solution was rapid and effective. Although it was not as final as closing down the website or blocking the domain name permanently, it was enough to prevent the crime from being committed again, at least in Spain.
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