The Pirate Bay remains freely accessible in the Netherlands pending the outcome of a landmark lawsuit. Before making a final decision, the Dutch Supreme Court wants clarification from the EU Court of Justice on several issues. Among other things, the EU Court must decide whether The Pirate Bay communicates illegal content to the public.
Early last year The Court of The Hague handed down its decision in a long running case which had previously forced two Dutch ISPs, Ziggo and XS4ALL, to block The Pirate Bay.
The Court ruled against local anti-piracy outfit BREIN, concluding that the blockade was ineffective and restricted the ISPs’ entrepreneurial freedoms.
Responding to the verdict the two ISPs quickly unblocked the site and various other Dutch ISPs followed suit.
Meanwhile, the Hollywood-backed group took its case all the way to the Supreme Court and today Advocate General Van Peursem published his conclusion after a careful review.
The Advocate General advises the Supreme Court to stay the proceedings between BREIN and the Internet providers in order to seek clarification from the EU Court of Justice on several matters.
The first question that requires a European review is whether The Pirate Bay is actually communicating illegal content to the public. If this isn’t the case then the EU Court should rule whether ISPs can be ordered to block the site on other grounds.
A decision at the European level will be important, as it may also affect court orders in other countries, such as the UK, Italy and Belgium.
When the questions are resolved at the EU Court, the Advocate General advises to redo the entire trial noting that The Court of The Hague was too strict when it concluded that the blockade was ineffective and disproportional.
The Advocate General’s advice is not binding so it’s not yet certain whether the case will be referred to the EU Court of Justice. However, in most cases the recommendations are followed by the Supreme Court.
The Supreme Court is expected to release its verdict on October 9th.