EU Court of Justice rules that ISP filters are prohibited under EU law

THE EUROPEAN UNION COURT OF JUSTICE has ruled that national court injunctions that require an internet service provider (ISP) to install a filtering system to prevent the illegal download of files are prohibited under EU law.

The ruling relates to a case where Belgian music firm SABAM obtained an injunction against ISP Scarlet Extended SA by the Brussels Court of First Instance over users illegally downloading songs over peer-to-peer networks.

That court ordered Scarlet to prevent users from continuing to infringe copyrights, but Scarlet appealed the decision in the Brussels Court of Appeal on the basis that the prior ruling violated EU law, so the case was referred to the EU Court of Justice.

The Court of Justice decided that intellectual property holders may apply for injunctions with national courts, but that these injunctions must comply with the limitations set out under EU law. It specifically cited the E-Commerce Directive, which states that national authorities must not adopt measures that would force an ISP to carry out general monitoring of information on its network.

The Court of Justice was not happy with the Belgian court's injunction, which it said would result in "a serious infringement of Scarlet's freedom to conduct its business", particularly since it requires Scarlet to install a "complicated, costly, permanent computer system at its own expense".

This is particularly significant, given a UK High Court ruling last month that required BT to block access to file-sharing web site Newzbin2 and pay the full implementation costs of the block. After today's decision, however, BT could appeal to European Union courts.

The Court of Justice said that there is a requirement to strike a fair balance between the right to intellectual property and the freedom to conduct business, the right to protection of personal data including IP addresses and the right to receive or impart information, the latter three of which it found were not being respected by the Belgian national court.

The Court was also concerned about the potential for such injunctions to undermine freedom of information, as it is possible that such filtering systems might not adequately distinguish between unlawful and lawful content and communications, which could lead to legal downloads being blocked, a scenario that would be a fundamental violation of EU law.

The Court also said that while the right to intellectual property is enshrined under the Charter of Fundamental Rights of the EU, the wording of the Charter and the Court's case law does not necessitate that this law be absolutely protected.

This decision is a monumental victory for filesharers and advocates of freedom and an open internet, as well as for a number of embattled ISPs throughout Europe. However, intellectual property holders will likely campaign for changes to European law, which, if implemented, could allow national injunctions to be upheld.

Update
The British Phonographic Industry (BPI), which wants BT to block The Pirate Bay, does not believe it will make any difference to BT's case.

"The SABAM v Scarlet ruling relates to the very precise facts of a very specific case and the measures being adopted in the UK to reduce online piracy are entirely different," Adam Liversage, director of communications at BPI, told The INQUIRER.

"The Court actually reconfirmed today that, under European law, injunctions can be ordered against ISPs in relation to both existing and future copyright infringements. Website blocking has already been established by the English High Court as being justified, proportionate and in accordance with that European law."

European courts might not agree with BPI's assessment, however. While the Court of Justice did acknowledge that injunctions are legal, it qualified this by saying they must still comply with EU law, which the Scarlet case clearly did not. As for BT, the jury is still out on that one. µ