With the entry into force of the new Belgian summary procedure on June 1, 2024 is an important step in the fight against online infringements of copyright, related rights and illegal exploitation of games of chance. The "dynamic strike order" is an innovative legal solution that makes the enforcement of interim measures more effective and allows for swift action against ongoing or repeated violations on the Internet.
The introduction of this procedure is the result of the Belgian law of June 19, 2022, with which the European DSM Directive 2019/790 on copyright in the digital single market was transposed. This law was further refined by the law of December 22, 2023, which extended the application to illegal online gaming.
But what does this dynamic strike order exactly? And what does this mean for rights holders and online intermediaries? We list the most important aspects of this new legal procedure.
1. What is the "dynamic strike order"?
The dynamic strike order may be requested in a specific summary proceedings which is exclusively at the president of the enterprise court of Brussels can be initiated. The goal is to fast and effective act against large-scale online infringements of copyright, related rights and the rights of database producers. Since 2023, this procedure also applies to combating illegal gambling on the Internet.
Unlike traditional summary proceedings, here the requirements of urgency and absolute necessity automatically met. Thus, the plaintiff does not have to demonstrate urgency. This is a crucial innovation as copyright or illegal gaming infringements can spread quickly and traditional procedures are often too slow to be effective.
Another important renewal is the role of the "Service for the fight against copyright and related rights infringements on the Internet and against the exploitation of illegal online games of chance." (hereinafter "the Service"), a government department within the FPS Economy. This body is responsible for the implementation and possible adjustment of judicial measures to continue to fight infringements even if the infringers change their tactics.
2. How does the procedure work?
The new procedure differs from traditional provisional measures and follows a flexible and targeted trajectory:
- Submission of the case
- The rightholder or an authorized representative (e.g., a collecting society or interest group) files the case Through a unilateral petition or subpoena.
- There is no need no evidence of urgency to be delivered, as this is presumed by law.
- Judicial review
- The court assesses whether the violation "manifest and significant" is. This means that the offense indisputable should be and a major impact must have on the entitled person.
- In copyright infringement cases, the complaining party must show that:
- the right it invokes valid seems;
- the breach clear and substantial is;
- a balancing of interests and rights supports justified action.
- Allocation of measures
- The judge may issue a cease-and-desist order impose on the occupier itself or to intermediaries, such as Internet service providers, hosting companies, search engines and payment services.
- If the court deems it appropriate, the execution of the order shall be entrusted to the Service, which can adjust the modalities of implementation if new intrusions emerge (for example, if an illegal streaming website moves to another domain).
- Implementation by the Service
- The Service has the authority to dynamically adjust the measures imposed so that they remain effective. This is particularly useful for persistent offenses where offenders adapt quickly.
- For example, the Service may:
- Provide an updated list of domain names to be blocked to Internet service providers.
- Decide that additional websites should be blocked if they commit identical violations.
- Collaborate with other enforcement agencies and platforms.
3. Benefits and impact of the dynamic strike order
The introduction of the dynamic strike order offers several advantages:
✅ Speed and flexibility: Since urgency is presumed, action can be taken more quickly than in traditional summary proceedings. This prevents unnecessary delays in protecting copyrights and combating illegal gaming.
✅ Effective enforcement: By engaging the Service, measures can be continually adjusted to continue to combat breaches even as offenders change their tactics.
✅ Wider range: Not only direct infringers can be targeted, but intermediaries such as Internet service providers, search engines and payment services can also be required to cooperate.
✅ Combating "mirror sites": Websites that quickly register new domain names to circumvent blockades can be dealt with immediately without the need for a new lawsuit each time.
✅ No general monitoring requirement: While intermediaries may be required to block infringing content, they may not be required to actively monitor all content they host or transmit.
4. What about the Digital Services Act (DSA) mechanism?
With enactment of the Digital Services Act (DSA) on Feb. 17, 2024 a parallel administrative procedure has been established by which users can report illegal online content to platforms and, if necessary, to national regulators such as the Belgian IBPT. This begs the question: is the dynamic coercive measure still relevant?
The answer is yes, because:
- The DSA offers a administrative procedure, but does not guarantee that the content will actually be taken offline.
- The Dynamic strike order is faster and enforceable, with immediate consequences for infringers and intermediaries.
- The DSA provides no dynamic enforcement option as the Service has.
- The judicial route often offers more legal certainty and coercive measures than the DSA procedure.
5. Conclusion
The dynamic strike order is an innovative and powerful legal tool in the fight against online copyright infringement and illegal gaming. Thanks to The speed, flexibility and commitment of the Service offers this procedure more effective protection for rights holders than classic summary proceedings.
This new capability allows copyright holders, film producers, music companies and other rights holders act more quickly against piracy and abuse, while intermediaries such as Internet service providers take responsibility in blocking illegal activities.
Whether this tool will be a success in practice will depend on the number of cases initiated through this route. For now, we are still waiting for the first applications - but the legislation is already in place to fight against online infringements to a higher level.
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