The case concerns proceedings between an Austrian ISP and the right holders whose films were made accessible on a third party website without their consent.

At the request of the right holders the Austrian courts prohibited the ISP from providing access to that infringing website. The ISP fought this measure all the way to the Austrian Supreme Court, which referred to the European Court of Justice on the questions of whether such measures are in line with the 2001 Copyright Directive and EU fundamental rights.

The Copyright Directive (Art. 8.3) provides that an injunction can be obtained against "intermediaries whose services are used to infringe" copyright. The Court held that an ISP is an inevitable actor in any transmission of an infringement over the Internet between one of its customers and a third party and must be held as an intermediary whose services are used to infringe. To exclude ISPs from the scope would substantially diminish the protection sought by the Directive.

With regard to protection by the EU Charter, the Court found several fundamental rights at issue: the right to protection of intellectual property (right holders), the freedom to conduct a business (ISPs) and the freedom of information (Internet users). As in previous cases, the European Court has ruled that Member States must ensure that a fair balance is struck between the rights in question.

The Court considers that the injunction does not infringe the very substance of the ISP’s freedom to conduct a business, first because the ISP can choose the specific measures in order to achieve the result sought, and second, the ISP avoids liability by proving that it has taken all reasonable measures.

However, when choosing specific measures, the ISP must respect the right of Internet users to freedom of information by taking measures that are strictly targeted, and do not unnecessarily deprive them from lawful access to information and by ensuring that these measures have the effect of preventing, or at least of seriously discouraging, unauthorised access to the infringing content.

In earlier decisions, the European Court had ruled against injunctions ordering the intermediary to install a general preventive filtering system (Case C-70/10 Scarlett Extended, Case C-360/10 SABAM).