The aim of the BREIN foundation is to combat copyright infringements, in particular for its affiliated rightsholders. On 1 July 2020, a district court in the Netherlands ruled in preliminary relief proceedings initiated by BREIN, seeking that the defendant be ordered to stop offering hyperlinks or other technical references that allow users access to illegal content. Midden-Nederland District Court 1 July 2020, ECLI:NL:RBMNE:2020:2780 The defendant disputed BREIN’s right of action, arguing that the requirements of Article 1018c(1) of the Dutch Code of Civil Procedure had not been met.
Firstly, the defendant disputed that BREIN had sufficiently described the parties whose interests it is representing. The Preliminary Relief Judge held that in order to comply with Article 1018c(1)(b) of the Dutch Code of Civil Procedure it was not necessary to list specific names in the summons. The fact that the foundation referred in its summons to its website for the names of its affiliates was sufficient. In so doing, BREIN had provided sufficient description of the persons for whom the class action was instituted.
In addition, the defendant disputed that BREIN had sufficiently substantiated the assertion in the summons that repeated infringing acts had taken place. This defence was also rejected by the Preliminary Relief Judge as the summons contained a specific claim and factual assertions on which that claim was based.
Finally, the defendant argued that BREIN had no locus standi because its summons did not state what had been done to reach a settlement in mutual consultation. According to the defendant, the requirement of Article 3:305a(3) of the Dutch Civil Code had not been met. This defence was also rejected. The defendant had stated itself that BREIN made him a settlement proposal, but that no consensus had been reached on this point. In addition, the Preliminary Relief Judge held that the requirement of Article 3:305a(3) of the Dutch Civil Code did not go as far as requiring BREIN to enter into consultation with the defendant even if that consultation could not reasonably help resolve the dispute. The Preliminary Relief Judge declared BREIN to have a right of action.