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EU Court Rules it Illegal to Impose Anti-Piracy Network Filtering upon ISPs

Posted: 24th Nov, 2011 By: MarkJ

The European Court of Justice (ECJ) has today ruled that measures, specifically those which order an ISP to install a system for filtering and blocking electronic communications in order to protect copyright (i.e. to block copyright file sharing (piracy)), are effectively illegal under EU law.

The case itself stems from a long running dispute between a Belgian ISP, Scarlet, and a Rights Holder management company, SABAM. The latter accused Scarlet's customers of using P2P (BitTorrent) file sharing websites and services to "illegally" download its catalogue from the internet.

To cut a long story short. The Brussels Court of First Instance (Belgium) originally ordered Scarlet to make it "impossible for its customers to send or receive in any way electronic files containing a musical work in SABAM's repertoire by means of peer-to-peer software". As anybody familiar with the internet knows, this request is also impossible to implement because there are many ways, beyond an ISPs feasible control, to circumvent such restrictions.. and so the case continued onto the EU, until today.

The ruling, which could have serious implications for a recent UK injunction that forced broadband ISP BT to block the Newsbin2 website over allegations of facilitating internet copyright infringement (here), found such measures were not compatible with EU laws that protect online privacy and "the freedom to receive or impart information".

ECJ Statement

The Court’s reply is that 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.

Such an injunction does not comply with the prohibition on imposing a general monitoring obligation on such a provider, or with the requirement to strike a fair balance between, on the one hand, the right to intellectual property, and, on the other, the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information.

The rules for the operation of injunctions are of course still a matter for national law, although the ECJ makes clear that these must respect the "limitations arising from European Union law". In other words, ISPs cannot be forced to conduct general filtering of Internet traffic for the purpose of tackling online piracy.

A London Internet Exchange (LINX) Statement said:

"The Court judgement therefore goes well beyond saying what a court may decide, by means of an injunction: it also sets out the limits of Member States’ powers to legislate to draft ISPs as copyright police. It will be a crucial precedent in future arguments about the Digital Economy Act, in the UK, HADOPI in France, various blocking requirements in Italy, and numerous other schemes across the EU.

As victories for ISPs in the copyright wars go, this one was comprehensive. It will be seen as a landmark ruling for years to come."

Malcolm Hutty, President of EuroISPA, said:

"The Internet industry plays a crucial part in connecting European citizens and businesses to information, news, entertainment, social media, cultural content and other public interest content. This ruling is therefore of fundamental importance for the future of the Internet and the development of a strong Digital Single Market.

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."

Peter Bradwell of Open Rights Group (ORG) added:

"This judgement is a victory for freedom of expression online. It draws a thick line in the sand that future copyright enforcement measures in the UK can not cross. Invasive and general surveillance of users is unacceptable. This helps to nail down the limits of powers to curtail people's freedom to communicate online."

This is undoubtedly a significant development, one which has every chance of influencing UK courts, in the long running saga of ISPs vs Rights Holders. It does not directly prohibit ISPs, Rights Holders and the UK government from implementing a Voluntary Code of Practice for website blocking, which is currently being negotiated (here), but it could if those same providers simply decided to say "NO"; any related case would now surely refer to the ECJ's judgement.