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.
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
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
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
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
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.
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
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."
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
"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]."
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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