Courts cannot order ISPs to filter P2P, ECJ rules

The European Court of Justice has ended the Scarlet v Sabam case by ruling that ISPs cannot be forced to apply indiscriminate monitoring of their customers' communications on their networks
Written by David Meyer, Contributor

Courts in the EU may not order ISPs to filter out copyright-infringing file-sharing from their networks, the European Court of Justice has said.

European Court of Justice

Courts in the EU may not order ISPs to filter out copyright-infringing file-sharing from their networks, the European Court of Justice has said. Photo credit: Gwenaël Piaser/Flickr

The ruling came on Thursday, ending a very long-running case between Belgian ISP Scarlet and rights-holder group Sabam. Privacy advocates said the judgment could have consequences in the UK, but industry sources suggested the impact could be limited.

"EU law precludes an injunction made against an internet service provider requiring it to install a system for filtering all electronic communications passing via its services which applies indiscriminately to all its customers, as a preventive measure, exclusively at its expense and for an unlimited period," the ECJ said in a statement.

The Sabam v Scarlet case goes back to 2004, when the Belgian rights management society took Scarlet to court over its customers' unauthorised peer-to-peer (P2P) sharing of copyrighted material. The Brussels Court of First Instance ordered Scarlet to filter its networks, so that P2P sharing of musical works in Sabam's repertoire was impossible.

Scarlet took the case to the Brussels Court of Appeal, complaining that the ruling was in tune with neither EU privacy law nor the e-Commerce Directive. That directive places a ban on forcing ISPs to set up general monitoring on their networks, although it does allow rights-holders to seek a legal remedy if their intellectual property is being misused. The appeal court asked the European Court of Justice (ECJ) what to do.

EU advocate general Pedro Cruz Villalón advised the ECJ in April that the court order was probably illegal under EU laws that protect the privacy of communications, the right to protection of personal data, and freedom of information.

The ECJ agreed, saying on Thursday that national courts may not require an ISP to install a filtering system to prevent illegal file downloads. Europe's top court said the order conflicted with the prohibition on general monitoring obligations, and gave too much weight to the right to intellectual property.

"It is true that the protection of the right to intellectual property is enshrined in the Charter of Fundamental Rights of the EU," the ECJ said in a statement. "There is, however, nothing whatsoever in the wording of the Charter or in the Court's case law to suggest that that right is inviolable and must for that reason be absolutely protected."

The ECJ pointed out that users' IP addresses are "protected personal data". The filtering system imposed on Scarlet would have had to log IP addresses in order to see who was sharing copyrighted material.

"The injunction [on Scarlet] could potentially undermine freedom of information since [the filtering system imposed on Scarlet] might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications," the ECJ added.

'Fundamental importance'

EuroISPA, the association of European ISPs, welcomed the ECJ's ruling, saying it would counter "disproportionate technical enforcement" of copyright.

This ruling is of fundamental importance for the future of the internet and the development of a strong digital single market.
– Malcolm Hutty, EuroISPA

"This ruling is of fundamental importance for the future of the internet and the development of a strong digital single market," EuroISPA president Malcolm Hutty said in a statement. "Considering the major contribution that the internet industry can make to the economic recovery, it was indeed not the time to put the innovation of the internet at risk, and it is of fundamental importance for the future of the internet that the principles reaffirmed in the ruling are respected."

Privacy International campaigner Alex Hanff was also pleased by the judgment, saying it could stymie aspects of the UK's Digital Economy Act. The act, which describes a new framework for copyright enforcement, would oblige ISPs to log the IP addresses of customers who unlawfully share copyrighted content, so those addresses can be passed on to rights holders.

"If they use monitoring in any way, it would be covered by this decision," Hanff told ZDNet UK. "It is incredibly motivating for [Privacy International] to see the major court in Europe standing behind the privacy rights of citizens."

Website blocking

The decision would not cover website-blocking orders of the sort that the High Court imposed on BT earlier this year, forcing the ISP to block customers' access to file-sharing site Newzbin2. These orders are permitted under the e-Commerce Directive. However, Hanff suggested that in practice, blocking sites such as The Pirate Bay would require monitoring of the sort now banned.

"It would be ineffective to block The Pirate Bay on a blacklist because they have a large number of mirror sites and trackers that are not The Pirate Bay, but are still used [by that service]," Hanff said. "The only way to block those trackers and mirror sites would be to filter terms [at] the subscriber's connection. That is monitoring, which is covered [by the ECJ ruling]."

However, a source within the ISP industry pointed out that filtering as such was not currently going on in the UK — Virgin Media trialled Detica's CView packet-sniffing system, but subsequently dropped the scheme.

The source suggested the ECJ ruling may not be applicable to the Digital Economy Act, as the act does not call for general monitoring as such. Nevertheless, it does help define limits for internet users and rights holders, according to Peter Bradwell, copyright campaigner at the Open Rights Group.

"This judgment is a victory for freedom of expression online. It draws a thick line in the sand that future copyright enforcement measures in the UK cannot cross," Bradwell said. "This helps to nail down the limits of powers to curtail people's freedom to communicate online."

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