Court of Appeal Palestine Action proscription judgment - the Home Secretary's national security blanket

The Court of Appeal has decided the Home Secretary was right to designate Palestine Action a terrorist organisation. 

Press Summary - Huda Ammori v Secretary of State for the Home Department
Appeal No: CA-2026-000583
Neutral Citation Number: [2026] EWCA Civ 721 

 Apparently, amongst other things, "The Divisional Court... adopted an excessively analytical approach to the interpretation of the Proscription Policy." (Para 88 of the judgment). An appeal court admonishing a lower court for being excessively analytical requires a closer look... 

On a first scan, the judgment appeared to be saying a Home Secretary has a licence to do whatever they like, as long as they cite national security as the justification. A close read of the whole thing confirms that impression.

The Court seems to have started with the outcome they wanted and worked backwards from there, focussing on deference to the Home Secretary on matters of national security. Basically they declare the Divisional Court at first instance was wrong because they didn't show sufficient deference to or respect for the Home Secretary; and if it wasn't for that pesky Human Rights Act, they would not have had to go to the trouble of dealing with this nonsense of questioning the government.  We don't know what classified evidence they considered in the closed hearing but if the selective quotation of the evidence we do know about is a guide it won't have made a great deal of difference. 

Section D of the opinion, paras 21-32, is quite a nice summary of how wide ranging and wide reaching the Terrorism Act 2000 is. It really does vastly over specify what might count as terrorism to a degree most people are not aware of. As the UN Special Rapporteur on counter-terrorism and human rights pointed out to the Court and multiple human rights experts have made clear over the years, the Act's definition of terrorism is excessively broad and wrongly conflates ordinary criminal acts with terrorism, in breach of UN standards.

Moving rapidly on to paragraph 48, Lady Carr of Walton-on-the-Hill, CJ (delivering the judgment of the court) says:

 

 The Joint Terrorism Analysis Centre JTAC report did state that Palestine Action (PA) could be considered terrorists under the wide definition of terrorism in the 2000 Act but also emphasised that PA stressed its non-violent action against people. 

Onwards to paragraph 81, the Appeal Court judges consider that when policies include awkward details that might interfere with what a Home Secretary wants to do they should not be "read in a complicated or excessively analytical way". Policies "are not rules, but guides" and they are not there to constrain the Home Secretary.

 

Paragraph 87 & 88 - Even if the Divisional Court was right that the policy constrained the Home Secretary, she could still consider operational benefits. So is it ok for a Home Secretary to proscribe an organisation if the operational benefits amount to government, political, policing or other public service convenience?

 

 Paragraph 104 - The Court would not be reviewing the Home Secretary's decision at all if not for the Human Rights Act. But since they have to, they "must... respect... the balance of rights... struck by the Home Secretary".

 

Section M of the judgment, para 104 to 117 on the margin of appreciation rejects Liberty, Amnesty International and UN special rapporteur on human rights submissions to the Court, emphasising government and Home Secretary perspectives on national security should be deferred to.

  

  Section N, para 118 to 182, on the Court's evaluation of the proportionality of proscription again is about deferring to the Home Secretary on national security. When the Home Secretary designates an organisation terrorists, proscription is proportionate. 

 

 

In paragraph 152, agreeing with the Divisional Court, the appeal judges quickly dismiss the plight of the thousands of pensioners arrested for terrorism offences while protesting the genocide and the proscription of Palestine Action. People opposing genocide and supporting Palestine Action "ought to have realised" they were wrong. 

The judgment then basically says, at paragraph 153, that "many people may be subject to [a] chilling effect" but that chilling effect is not real if there is no legal jeopardy. I'll be blunt here. That is simply illogical.

 

 At paragraph 164 Palestine Action are judged to have "little or nothing in common with the suffragettes or the anti-apartheid or Iran War protest groups" and the Home Secretary & her advisers are best placed to assess them as "a threat to third party individuals and property". Let's just be generous and suggest the Court's sojourns into history, particularly when using the suffragettes as an exemplar are ill-advised. Left wing journalist, Owen Jones, is a little more severe: "The lady chief justice has desecrated our history - and erased the truth about activists who fought for the rights of women like herself." 

Para 171 to 174 says proscribing Palestine Action degrades the organisation and its finances - a "key benefit" - and the Home Secretary was best placed to make that decision given matters of national security.

At para 175 the Court say they looked at all materials available to the Home Secretary, open and classified and "are satisfied that the Proscription Decision was a justified and proportionate interference with ECHR rights."

There is one small dent in the Court's absolute deference to the Home Secretary at paragraph 180 where they admit that the Home Secretary's proscription decision "may have been borderline."

But 

 But that doesn't matter because she had the latitude to make the decision and she was right...

 

They then conclude the Home Secretary should be deferred to on matters of national security or matters she decides to be national security related. The Divisional Court erred on interpreting the proscription policy and on assessing proportionality. Palestine Action are correctly designated terrorists. 

 

 

In light of this Court of Appeal decision it is worth reading the Joint Terrorism Analysis Centre (JTAC) proscription assessment report on the group. JTAC specifically state their assessment that Palestine Action is a terrorist group is entirely based on the broad definition of terrorism in the 2000 Act which considers criminal damage to property to be terrorism. They also report that the majority of the direct action undertaken by Palestine Action would not be classified as terrorism, even under the broad definition used in Section 1 of the Terrorism Act 2000. 

 

 

 

 

The overriding impression, as I noted above, is of a court that started out with the outcome it decided it wanted and worked back from there to mould their reasoning to that outcome; the core theme being absolute deference to the government and the Home Secretary, in particular, when it comes to matters of national security. It is a license for government to cite national security as an excuse for any action. I've taken to considering it the Home Secretary's national security blanket.

For what it is worth,

I oppose genocide.

I oppose the state of Israel's ongoing genocide against the Palestinian people. 

I do not support Palestine Action.

Unlike the Appeal Court judges, I remain unconvinced that proscription, in this case, is proportionate. 

 

Response from MEP on copyright directive

I've had a response from Labour MEP, John Howarth to my email yesterday asking him to oppose the article 13 provisions in the proposed EU copyright directive.

"Dear Ray Corrigan

Thank you for your email regarding Copyright legislation.
Just to let you know before I was an MEP I ran a business in the creative sector developing copy, images, brands and content. When I am not doing my day job I play music - though I don’t get a lot of time to perform right now. I started my business career in the software development sector and have worked with aspects of the internet since the days of green screens. Not exactly typical for a politician, I agree, but you will forgive me if my experience informs my thinking.
For far too long people who work in the creative sector have been ripped off by the monopolistic internet platforms who place their work on line and use their content to make their services credible and to attract advertising revenue yet fail properly to reward the creators. Musicians and performers generally consider themselves lucky to do what they do but they also deserve fair reward for their work. The audience see a performance or hear a three minute song - but those things are built over years of learning a craft and endless hours practicing and rehearsing. Images can be created in a couple of hours but ideas and concepts take time and collaborative effort to develop. The internet has created new jobs and made some people very rich indeed but it has also destroyed value and exploited the skills and creativity of many others.
So as well as people who write to me demanding that we “save the internet” I also receive representations from the National Union of Journalists, the Musicians’ Union, publishers’ group’s, media organisations and creative industries representatives putting their side of the story.
Among all of this claims have been made about the proposed legislation that are wildly exaggerated or simply untrue. The implementation of updated copyright legislation will NOT end the internet as we know it. It will NOT constrain or unduly limit ‘free speech’, it will NOT place an unreasonable burden on the internet giants who have put significant time and effort into misleading people because they believe it threatens their super profits. It will not “outlaw memes”, it protects and defines the notion of satire and parody (which, by the way, were not in any way protected in the outdated copyright regimes that have applied till now). Exceptions set out in the legislation protect free academic enquiry, small businesses and bloggers.
I do not believe that the legislation in any way limits the ability of the open source software community to continue to trade on the business model it has operated for some time - in other words the ‘sharing economy’ will continue to do just fine. The monopolistic platforms benefit from this “free internet”, however the fact is nothing is “free” - someone always pays, whether through collection of personal data in exchange for access or by the exploitation of their work.
During the debate and before the first round of votes on the Copyright Directive I thought long and hard about how to approach the issue. While I have a degree of sympathy for the arguments about freedom of expression I am also concerned that the ‘free internet’ currently operates in an environment where the strong and powerful exert their influence without check and individuals are frequently bullied and victimised and the platform is exploited by peddlers of hate. As a local public representative I had to address several cases of unchecked systematic bullying over the internet and all of the evidence suggests that these problems had got worse, particularly in the public space and it is my firm view this is poisoning public discourse. I fail to see why the right to free expression should apply to people hiding behind cloaks of anonymity while others who express opinions in their own name are subjected to aggression in spaces into which the public have been invited. This concept of “freedom” is essentially a right-libertarian view and not one I share. The internet is the Wild West and, if it is not to become a tool of repression, must before long become civilised and subject to the rule of law where members of the public are able to participate on the same basis as any physical public space.
So I will be supporting the compromise reached between the Parliament and the Council on the Copyright Directive, because of the above and not least, because addressing the ‘value gap’ between platforms and creatives was part of Labour’s 2017 election manifesto in the UK.
Thank you again for contacting me.    
With best wishes,
John Howarth MEP On your side in Europe.www.johnhowarthmep.uk"

My further response to Mr Howarth was as follows:

"Dear John,

 Thanks for the considered response. You might be surprised to learn that I agree with your concerns about the disproportionate power of the big tech industry, particularly the big five, Google, Facebook, Amazon, Apple and Microsoft. You’ll no doubt be aware of the recommendations of the recent report of the House of Lords Communications Committee 

- https://www.parliament.uk/business/committees/committees-a-z/lords-select/communications-committee/news-parliament-2017/internet-regulation-report-publication/  

and the Disinformation and Fake News report of the Commons Digital Culture Media and Sport Select Committee -  

https://www.parliament.uk/business/committees/committees-a-z/commons-select/digital-culture-media-and-sport-committee/news/fake-news-report-published-17-19/  

which make well intentioned efforts to reign in the big technology monopolies. What you cannot do, however, is fix a disproportionate monopolies problem with automated upload filters, which is what the most recent version of Article 13 of the copyright directive that we are aware of attempts to do 

 https://juliareda.eu/wp-content/uploads/2019/02/Art_13_unofficial.pdf  

However, software is generations away from being able to make the kind of nuanced assessment of what might constitute copyright infringement that is required. If you get two copyright experts to assess whether something is infringing or not you’d get two (or more) different views in each case. What experts cannot agree on, you will never teach software to come to an appropriate conclusion on. Yet the problem with article 13 is not just automated prior restraint of speech, in the name of preventing copyright infringement but that the very companies it is professed to protect creators and the creative sector from will be the ones building and operating the filters. Article 13 will incentivise big tech to continue to develop, refine, implement and operate content filters – like YouTube’s Content ID system – and will add to their monopoly portfolios the realm of internet censors. It will also stifle innovation as small start-ups will not have the resources to develop or operate the required software filters.  

Though it’s not directly related to the copyright question, you raise the issue of the misuse of the internet for nefarious activity. The internet is already a tool of repression and oppression, aggression, bullying and hate mongers, shysters and criminals, unethical human behaviour of every variety. In that it is a mirror of human nature and we should not confuse the tool with our inherent psyche. It is also the greatest engine for mass communication and creativity in the history of the planet. As for poisoning public discourse, certain prominent members of your own profession and the popular mainstream media have a less than pristine record – it is and has long been virtually impossible to conduct an informed and nuanced public debate about any complex socioeconomic matter, without being vilified by someone taking words or phrases out of context or distorting what was said to pursue a particular agenda.  

On the question of the rule of law, is not true that activity on the internet is not subject to the rule of law. Just to start with, consider –  

The Public Order Act 1986 

The Copyright, Designs and Patents Act 1988 

The Malicious Communications Act 1998 

The Copyright and Related Rights Directive 2001 

The Communications Act 2003 

The Digital Economy Act 2010 

The Counter Terrorism and Security Act 2015 

The Investigatory Powers Act 2016 

The Digital Economy Act 2017  

S127 of the Communications Act 2003, s4 & 5 of the Public Order Act and s1 of the Malicious Communications Act have been used to convict someone of a criminal offence for making a joke on Twitter, in addition to prosecuting people spreading hate speech and racist comments for which the offenders were jailed.  

If your goal is genuinely an internet “subject to the rule of law where members of the public are able to participate on the same basis as any physical public space” then there is a fundamental principle of law that is the presumption against prior restraint of speech. Not all restrictions on free speech are a breach of the prior restraint doctrine – e.g. in relation to national security matters – but the long standing principle is that it is safer to impose penalties after publication. So automated upload filters, mandated by article 13 of the copyright directive, will not only hand the global censorship keys to the big tech monopolies but will undermine your stated intention in relation to the rule of law.  

Finally in relation to the ‘value gap’, it would be better described as a revenue gap. It’s been crafted as a value gap by public relations people attempting to influence legislators, like your good self, in order to get laws like article 13 passed that impose liabilities on internet intermediaries. What the commercial sector supporting article 13 are saying is they would like a bigger slice of the revenues currently going to big tech. Google already has licences with the music industry. Not a lot of the revenues arising from these flow to the individual creators. It has always been so. Prior to our information age, if I may borrow your own words, “for far too long people who work in the creative sector have been ripped off” by the oligopolistic creative commercial sectors. The fundamental problem of the imbalance in power will not be solved by copyright law and the revenue flow issue is more of a competition law problem. 

The creative industries are more economically buoyant than they have been in a generation and the EU is proposing to pass a law to leverage big tech into giving them more money. The collateral damage will be significant.  

It will damage the internet as we know it in the EU.  

It will mandate automated software filter prior restraint on speech, with the keys to those filters controlled by the very big tech monopolies it is proposed to reign in.  

It is irrelevant whether the intention is not to outlaw memes, to include exceptions for satire, parody, free academic enquiry, small businesses and bloggers – the big tech software filter operators will be police, judge, jury and censor.  

Like you, my experience informs my thinking.  I am an academic writer, teacher, manager, blogger with a long standing interest in technology policy. For years, Yahoo! search labelled my blog with a red warning triangle and a note in red font “Warning! Dangerous Download!” If this Article 13 filter had been in place the 4700+ articles I’ve written on that blog might never have seen the light of day.  

My son works occasionally for a small roving theatre company, a charity, producing videos and other multimedia works for them. Towards the end of last year one their videos was taken down by YouTube for alleged copyright infringement, despite the charity having paid for and cleared the licence for the background music used. He spent weeks getting YouTube to re-instate the video, including dealing with threats that the charity would have their account suspended permanently. That charity might not have an outlet on the world wide web at all, if the article 13 filters had been in place. 

 It’s a fallacy to believe the future monopolistic wielders of article 13 censorship keys – Google and the other big technology companies amongst them – will protect the interests of a single academic or small enterprise, other creators or the creative industries. They will not focus on anything other than their own economic interests.  

It is clear from your response that you are unlikely to change your mind on the copyright directive. I trust you won’t mind if I publish this correspondence on my blog in the hope of reaching a wider audience, before an article 13 software filter takes a dislike to my words and engages in some routine prior restraint.  

Regards,  

Ray Corrigan"

Update 22/3/'19:

Mr Howarth's  Political & Staff Manager Jim Robbins has kindly acknowledged my response and explained Brexit is pretty much getting in the way of everything at the moment; but that they will consider my perspective seriously.

Ray,

John has asked me to let you know that he really values your response and will consider it fully and speak to colleagues who have been involved with the debates on Article 13 and copyright.

He will respond fully in due course but, as you can imagine with the Brexit situation, things are pretty hectic here at the moment so I’m not quite sure when that will be.

Thanks for your email and the response.

Kind Regards,

Jim

Jim Robbins

Political & Staff Manager

Office of John Howarth MEP for South East England

Entirely understandable.

Many thanks Jim. I appreciate the acknowledgement. Good luck to John and those of you working with him in making a constructive contribution to finding a way out of the appalling Brexit chaos. Given the news from BMW recently that they will consider shutting down the Mini factory in Oxford, should Brexit go badly, you and John will be acutely aware of the deep concern it is causing in my area of the country. 

Regards,

Ray 

Note to MEPs on proposed copyright directive article 13

At the prompting of the Open Rights Group I have written to my MEPs asking them to vote against the proposed copyright directive coming before the European parliament next week.

UK Members of European Parliament (MEPs), for a short time longer, have the power to stand against digital censorship by opposing Article 13 of the proposed EU Copyright Directive. This provision of the directive would introduce automated systems to filter what can be seen and said online. In an age as dependent on information flows as ours is, information laws can have crucial consequences for markets and politics. Actions taken to protect copyright can reshape politics by giving both the responsibility and power to control information flows to a small number of key economic actors. Article 13 of the proposed copyright directive would completely change the politics of who controls information, and hence who controls the public narrative.

The subtlest argument in favour of the directive is that all creators should be remunerated for their work and any use of that work online. This is a commendable sentiment and an easier argument to make than asking for an additional slice of monopoly rent for copyright industries. However, the copyright directive itself says nothing directly about remunerating creators. Mostly it refers to “rightsholders”. Ironically, with the stated intention of wrestling control from the giant US technology behemoths and improving protections for creators and the creative industries, it will concentrate the power of algorithmic, automated censorship in the hands of those very same companies.

What is perhaps more informative is that many, many publishers, journalists, libraries, scientific & research institutions, universities, civil society human rights & media freedom groups, small independent publishers, consumers, tech cos and even the UN Special Rapporteuron Freedom of Opinion and Expression are strongly opposed to it.

I highly recommend the empirical research of the CREATe copyright consortium if you are looking for a more detailed and informed perspective on the copyright directive as a whole, available at

https://www.create.ac.uk/policy-responses/eu-copyright-reform/

The latest incarnation of Article 13 of the Copyright in the digital single market directive, developed through the trialogue (sic) process, is a really bad idea and I would request, as my MEPs, that you vote against it when it comes before the European parliament next week.

Regards,

Ray Corrigan

Note to Virgin Media Web Safe team re APPG website block

On the advice of Virgin Media Twitter responder LB, I've written to their Websafe people at websafefeedback@virginmedia.co.uk

Hi folks,

Just to let you know Virgin Media WebSafe seems to be blocking my access to the website of the All Party Parliamentary Group on Extraordinary Rendition. One of your folk on Twitter suggested I email you about it.

Twitter, if it's any help, is also blocking me posting tweets including the url of the site, 

http://www.extraordinaryrendition.org/

Both your bots and Twitter's seem to think the site is compromised with malware. If so it would be appropriate to alert them. If not, given the publication of the US Senate report on torture yesterday, it is an inopportune time to be blocking a parliamentary site connected with such subject matter.

Regards,

Ray Corrigan


-- 
Ray Corrigan, Senior Lecturer in Maths, Computing and Technology, Open University

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Note to chair of APPG on extraordinary rendition

I've written to the chairman of the All-Party Parliamentary Group on Extraordinary Rendition, Andrew Tyrie MP, explaining Virgin Media and Twitter appear to be still blocking access to their website.

Dear Mr Tyrie,

Just a short note to let you know that my efforts to access the website of your All Party Parliamentary Group on Extraordinary Rendition last night proved futile, since my communications service provider, Virgin Media, were blocking access to it. I basically got re-directed to a page saying:

"Sorry, Web Safe has blocked this site

This site has been blocked by Web Safe because it's listed as having malicious content. It could put your personal and financial information at risk or cause damage to your files.

Find out more about Web Safe Sign in to My Virgin Media to change your Web Safe settings If you don’t think this page should have been blocked, let us know.”

Additionally when I attempted to post a couple of notes about this on Twitter, Twitter blocked those too with the following message:

"This request looks like it might be automated. To protect our users from spam and other malicious activity, we can't complete this action right now. Please try again later."

I then noted on Twitter what had happened without using your website address and it accepted that.

Virgin Media have informed me via Twitter today that they are not blocking your website. I nipped home from the office at lunchtime to check that and found my home computer still being redirected to their warning about malicious content when I attempted to access the APPG site. Twitter also appears to be continuing to block posts containing the web address of your site http://www.extraordinaryrendition.org/

I suspect the problem is automated filtering software rather than any deliberate attempt by these companies to deny access to the APPG materials. Nevertheless, I would suggest asking your technical experts to look into the problem and perhaps follow up with Virgin Media and Twitter.  The irony of the APPG being censored, accidentally or otherwise, on the day the Senate Intelligence committee released the executive summary of their report into CIA interrogation and detention programmes will not be lost on you. The work you are doing in the APPG is extraordinarily important and it would be unfortunate if public access to it is inappropriately curtailed.

Regards,

Ray Corrigan

Virgin Media blocking website of Parliamentary group on rendition

Virgin Media appear to be blocking the website of the All-Party Parliamentary Group (APPG) on Extraordinary Rendition. As Chair of the group, Andrew Tyrie says, the

"APPG is a Parliamentary body with over sixty members, both Members of the House of Commons and the House of Lords.

You can visit the APPG’s website here"

Except you can't as a Virgin Media customer since you get re-directed to a page saying

Sorry, Web Safe has blocked this site

This site has been blocked by Web Safe because it's listed as having malicious content. It could put your personal and financial information at risk or cause damage to your files.
Find out more about Web Safe Sign in to My Virgin Media to change your Web Safe settings If you don’t think this page should have been blocked, let us know.

For information, Virgin Media, your web labyrinth is too tortuous for sentient human beings so I'm letting you know from here.

Interestingly, when I attempted to post two separate messages on Twitter about this, Twitter blocked me too:

"This request looks like it might be automated. To protect our users from spam and other malicious activity, we can't complete this action right now. Please try again later."

 My messages:

"@virginmedia blocking website of All-Party Parliamentary Group on Extraordinary Rendition http://www.extraordinaryrendition.org/ Tell Andrew Tyrie MP?"

and

"Twitter blocked me posting @virginmedia blocking website of All-Party Parliamentary Group on Extraordinary Rendition http://www.extraordinaryrendition.org/"

I've made several later attempts to post the message all resulting in the same blocking message - the Twitter bot accusing me of spamming or engaging in malicious activity.

Is it possible the APPG website has been compromised and Twitter and Virgin Media are right?

Either way Mr Tyrie, who I heard doing a valiant job of trying to educate some BBC broadcast journalists on extraordinary rendition this evening, should be informed.

ECJ: Intermediaries can be responsible for blocking copyright infringement

The Court of Justice of the EU last week decided Case C‑314/12,

REQUEST for a preliminary ruling under Article 267 TFEU from the Oberster Gerichtshof (Austria), made by decision of 11 May 2012, received at the Court on 29 June 2012, in the proceedings

UPC Telekabel Wien GmbH

v

Constantin Film Verleih GmbH,

Wega Filmproduktionsgesellschaft mbH

A panel of five judges, not unexpectedly given the advice of the Advocate General, decided that ISPs can be required to block access by its customers to a website which infringes copyright.

A first glance at the ruling suggested there might be a conflict here with the earlier decision of the Court in the 2008 Promusicae case, noting that privacy trumps copyright. But the Court carefully steers a route past that earlier decision.

Firstly they conclude, at paragraph 40, that

"Article 8(3) of Directive 2001/29 must be interpreted as meaning that a person who makes protected subject-matter available to the public on a website without the agreement of the rightholder, for the purpose of Article 3(2) of that directive, is using the services of the internet service provider of the persons accessing that subject-matter, which must be regarded as an intermediary within the meaning of Article 8(3) of Directive 2001/29."

ISPs are 3rd parties potentially making copyright infringing materials available to their customers. The preventative proactive copyright protective nature of the 2001 directive means that no proof that an ISP's customers are accessing the alleged copyright materials is required, before said ISP can be required to block an alleged infringing source.

The Court then asks if ordering an ISP to block a website offering infringing works undermines fundamental rights recognised by EU law. They (paragraph 46)  re-emphasise the Promusicae decision that copyright cannot undermine fundamental rights:

"The Court has already ruled that, where several fundamental rights are at issue, the Member States must, when transposing a directive, ensure that they rely on an interpretation of the directive which allows a fair balance to be struck between the applicable fundamental rights protected by the European Union legal order. Then, when implementing the measures transposing that directive, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with that directive but also ensure that they do not rely on an interpretation of it which would be in conflict with those fundamental rights or with the other general principles of EU law, such as the principle of proportionality (see, to that effect, Case C‑275/06 Promusicae [2008] ECR I‑271, paragraph 68)."

and note that court ordered web blocking to negate copyright infringement constitutes:

"a conflict between (i) copyrights and related rights, which are intellectual property and are therefore protected under Article 17(2) of the Charter, (ii) the freedom to conduct a business, which economic agents such as internet service providers enjoy under Article 16 of the Charter, and (iii) the freedom of information of internet users, whose protection is ensured by Article 11 of the Charter."

They go on to say the Court doesn't get to specify the web blocking measures. That decision is in the hands of the ISP. Such injunctions do amount to an interference with an ISP's freedom to conduct a business but this does not involve "unbearable sacrifices". As long as the ISP takes "reasonable measures" to block their customers access to the alleged copyright infringing materials, copyright holders have no cause of direct action against them.

The Court is very vague, however, on what these "reasonable measures" should be. It's for the ISP concerned, not a court, to decide the precise blocking methods (para 52) that should be deployed. Yet the Court are also apparently adamant (para 54) that intermediaries should have legal certainty on the measures they need to take to avoid penalty.

The ISP must also insure the blocking does not interfere with their customers' freedom of information and that the blocking techniques used should be "strictly targeted" to terminate the copyright infringement whilst not undermining fundamental rights. To that end from the the customers' fundamental rights perspective, they should be able to challenge any blocking processes implemented by the ISP in their national courts (para 57):

"It must be possible for national courts to check that that is the case. In the case of an injunction such as that at issue in the main proceedings, the Court notes that, if the internet service provider adopts measures which enable it to achieve the required prohibition, the national courts will not be able to carry out such a review at the stage of the enforcement proceedings if there is no challenge in that regard. Accordingly, in order to prevent the fundamental rights recognised by EU law from precluding the adoption of an injunction such as that at issue in the main proceedings, the national procedural rules must provide a possibility for internet users to assert their rights before the court once the implementing measures taken by the internet service provider are known"

Interestingly enough, though it doesn't appear necessary, at paragraph 61 the Court states -

"The Court notes that there is nothing whatsoever in the wording of Article 17(2) of the Charter to suggest that the right to intellectual property is inviolable and must for that reason be absolutely protected (see, to that effect, Scarlet Extended, paragraph 43)."

Then go on to conclude on the substantive questions before them:

"the Court (Fourth Chamber) hereby rules:

1.      Article 8(3) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that a person who makes protected subject-matter available to the public on a website without the agreement of the rightholder, for the purpose of Article 3(2) of that directive, is using the services of the internet service provider of the persons accessing that subject-matter, which must be regarded as an intermediary within the meaning of Article 8(3) of Directive 2001/29.

2.      The fundamental rights recognised by EU law must be interpreted as not precluding a court injunction prohibiting an internet service provider from allowing its customers access to a website placing protected subject-matter online without the agreement of the rightholders when that injunction does not specify the measures which that access provider must take and when that access provider can avoid incurring coercive penalties for breach of that injunction by showing that it has taken all reasonable measures, provided that (i) the measures taken do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available and (ii) that those measures have the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging internet users who are using the services of the addressee of that injunction from accessing the subject-matter that has been made available to them in breach of the intellectual property right, that being a matter for the national authorities and courts to establish."

Whilst I understand why the Court does not want to specify particular blocking or filtering techniques, it seems that copyright owners and ISPs and other internet intermediaries are left in something of a legal limbo.

• Under Article 8(3) of Directive 2001/29/EC, intermediaries can be ordered by a court to block sites thought to be distributing unauthorised copyright materials
• It does interfere with intermediaries' freedom to conduct a business to implement such measures but not unbearably so
• It is for the intermediaries not the Court to decide what specific blocking measures should be taken
• These measures, however, must - be 1. reasonable 2. strictly targeted 3. effectively protect the copyright holder 4. effectively protect fundamental rights of the ISP's customers
• Intermediaries have no guidance from the Court on what is meant by "reasonable" blocking measures or how to balance fundamental rights with the (not-inviolable) right to intellectual property
• If intermediaries don't get their measures sufficiently "reasonable" to make their customers and the requisite copyright holders happy, they leave themselves open to legal challenge from one or other or both

ISPs can be ordered to block but neither they nor the offended copyright holders know what kinds of specific blocking measures can be considered reasonable.  Given such legal uncertainty and the crude nature of software filters, I suspect the ultimate outcome will be that ISPs will tend towards over-blocking, since the risks of being sued by copyright holders for facilitating infringement are significantly higher than those of being sued by individual customers for breaching their fundamental rights.