LaLiga is still determined to block IPS. Not clear that I can do it legally

The War between LaLiga with Cloudflare It is intensifying, and this last weekend we have seen how websites blockages (legitimate or not) Not only have they been repeated but have gone to more. There is despite doubts about the validity of these measures, and that is where it is good to explain what their legal support is.

The context and the problem. LaLiga, in contact with the operators, has implemented measures that affect the services provided by cloudflare to its users. IPS (dynamic, according to LaLiga) are aimed at avoiding the illegal broadcast of football matches, but are affecting thousands of legitimate web sites and services. The reason: in Cloudflare IPS are shared and when one is blocked, all the sites associated with it are blocked.

The background. The contents industry protected by intellectual property has been looking for mechanisms for years to protect your business. Among them is the modification of the legislation to for example try to avoid (or minimize) judicial intervention. That happened for example With the Sinde law.

Article 138 of the Intellectual Property Law. Javier A. Master (@Javieramastre), by Maestre Abogados, published last Friday an extensive analysis entitled ‘The Affaire Cloudflare‘Explaining in detail the legal situation in this area. How he said, the mechanisms of the Sinde law “were not agile enough”, and for that is the art. 138 of the Intellectual Property Law (LPI), which in essence allows rights holders to request urgent precautionary measures against intermediaries that facilitate infractions, without the need to demonstrate that the intermediary is also offender.

LaLiga “demands” the operators. What allow both art. 138 As the 139 of the LPI is that the owner of the rights can directly sue the service providers (the operators) instead of the direct offenders. For Master the situation is as follows:

“With this trick, everyone is stored for each other:

The plaintiffs: we only ask for the measures. It is the judge who agrees.

The judge: one is asking for one, the defendant is paved. I have to grant the request.

The operator: I have to pay attention to the judge. “

Violation of freedom of expression. This expert adds that these closures occur without giving those affected the opportunity to defend themselves, “in a flagrant violation of both freedom of expression and information (art. 20 of the Constitution) and of the right to effective judicial protection (art. 24 of the Constitution) “. This process effectively avoids the participation of the parties really affected in the litigation.

But it should not be able to apply in this case. These measures are oriented to the urgent precautionary scope, but for example the Provincial Court of Barcelona interpreted in 2018 that these measures can be applied beyond this area. Thus, the sentence said, “it is established, for the first time, the possibility of requesting precautionary measures against intermediaries whose services use a third to violate intellectual property rights, without the requirement that the intermediary is also offender.”

And the evidence, what?. In that “doubtful constitutionality,” says Maestre, there is continuously talk about “urgent precautionary measures.” However, the audition was established at least “the need for a finding of the existence of infraction,” that is, proof that this violation of intellectual property is taking place. In the case of Cloudflare, the measures are based on a technical report that has not been contrasted, and the measures apply without those affected being able to defend themselves.

Plaintiffs and defendants united in collusion. Maestre points out that demanding (LaLiga) and defendants (operators such as Movistar) act in collusion in the judicial process to achieve the restriction of services without those affected being able to defend themselves. The PREVIOUS CASE JUDGMENTS They are shielding that the supposed offenders had not been “identified or located”, which would make it impossible for their defense to participate. Master makes it clear that in this case “Cloudflare is perfectly identified.”

But there is damage to third parties. This expert stands out how the Article 21 of the Civil Procedure Law (LEC). According to this text, the search should be rejected when it involves damage to third parties not demanded in the procedure. Here many affected have not demanded have been –all economically harmed companies and individuals-, but still the measures have been executed anyway.

Violated fundamental rights. All this points to a potential violation of several fundamental legal principles, including the Article 24 of the Constitution Spanish that guarantees the right to be heard and defend itself in a judicial process. In addition, Spanish legislation, through articles 270 of the LOPJ and 150 of the LEC, force to notify the judicial resolutions both to the parts of the process and to those who could be affected by them. According to Master, this obligation has been ignored.

Images | WIRESTOCK | LaLiga

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