ISP Cannot Be Forced To Block Copyright Infringing Files

An advisor to the European Court of Justice has said that an ISP involved in a long-running file-sharing dispute cannot be forced to block or filter copyright-infringing files at the behest of copyright holders. Such an action would amount to an invasion of customers' privacy and violate rights guaranteed under EU law.

sabamThe dispute between music rights group SABAM and Internet provider Scarlet has been long-running and was initiated when the ISP was called Tiscali and under different ownership.

SABAM hoped that through aggressive legal action, funded by its paymasters in the international music industry, that it could force Scarlet to install filtering devices in its network to monitor customer communications and stop them if they attempt to send or receive copyrighted music.

In 2007 they succeeded, with the Brussels Court ruling that Scarlet should install the industry-approved Audible Magic music fingerprinting system. The ISP objected, saying that by spying on its customers it would be acting illegally. Adding insult to injury, Audible Magic did not perform meaning that Scarlet could not comply with the court order to stop all infringement with the tools it had been given.

The court reversed its decision and the case went to the Brussels Court of Appeal which immediately handed it over to the European Court Of Justice. The outcome would be crucial, since it would indicate whether ISPs could be held responsible for subscriber behavior and be forced to block or introduce filters.

In the last 24 hours, an advocate general of the European Court of Justice has handed down his advice in the case.

Advocate General Cruz Villalón said that “the installation of that filtering and blocking system is a restriction on the right to respect for the privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights.

“By the same token, the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights.”

Villalón said that the rights within the Charter can be restricted, “on condition, inter alia, that any such restriction is ‘in accordance with the law’” and if it were “adopted on a national legal basis which was accessible, clear and predictable.”

Villalón also expressed concern that decisions made by the filter would be made without judicial oversight.

The court order would apply “…in abstracto and as a preventive measure, which means that a finding would not first have been made that there had been an actual infringement of an intellectual property right or even that an imminent infringement was likely.”

Furthermore, Villalón said that a pro-filtering ruling would not only affect Scarlet users in Belgium but those contracted to other ISPs in different countries, since Scarlet customers may very well be communicating with them on the Internet

Taking the above into consideration, Advocate General Cruz Villalón ruled that the installation of this kind of blocking and filtering systems would amount to a restriction on the right to privacy and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights.

“By the same token,” adds Villalón, “the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights.”

The European Court of Justice are not obliged to act on the advice given by Advocate General Villalón but his opinion will add significant weighting to the decision process.

Court of Justice Release (.pdf)

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