ISPs Can’t Be Forced To Filter Content According To European Court

EuropeComing just months after BT was forced to filter Newzbin2 for alleged copyright infringement the European Court of Justice (ECJ) has ruled that ISPs cannot be forced to block pirated content by way of an injunction. This will come as a major blow to copyright holders that were so recently celebrating the success of the precedent set by the Newzbin2 decision – but will be celebrated by those supporting personal freedoms and technology companies annoyed at having to foot the bill for policing for the content industries.

The ruling comes after the escalation to the ECJ of the Scarlet Extended case from the Belgian courts in 2004, where the music rights holder group, Société belge des auteurs, compositeurs et éditeurs (SABAM) were trying to impose content filters on a Belgian ISP (Scarlet Extended SA) to prevent illegal file sharing and distribution.

The ECJ ruled that:

EU law precludes the imposition of an injunction by a national court which requires an internet service provider to install a filtering system with a view to preventing the illegal downloading of files

It has been a worrying trend across Europe that laws such as the Digital Economy Act in the UK, and HADOPI in France have put the protection of the content industry’s monopolies ahead of the personal rights of the public – but this decision will hopefully mark asa watershed moment.

The Scarlet case was more invasive than the DNS blocks being imposed by BT to prevent access to NewzBin2, as they involved deep packet inspection of all traffic – an obvious violation of privacy. How this ruling will affect the Newzbin2 case, or the Digital Economy Act in general in the UK is yet uncertain – but at least we now know one body of government isn’t just being lobbied into appeasement.

Here’s the full text of the press release from the ECJ:

In its judgment delivered today, the Court points out, first of all, that holders of intellectual-property rights may apply for an injunction against intermediaries, such as internet service providers, whose services are being used by a third party to infringe their rights. The rules for the operation of injunctions are a matter for national law. However, those national rules must respect the limitations arising from European Union law, such as, in particular, the prohibition laid down in the E-Commerce Directive on electronic commerce under which national authorities must not adopt measures which would require an internet service provider to carry out general monitoring of the information that it transmits on its network.

In this regard, the Court finds that the injunction in question would require Scarlet to actively monitor all the data relating to each of its customers in order to prevent any infringement of intellectual-property rights. It follows that the injunction would impose general monitoring, something which is incompatible with the E-Commerce Directive. Moreover, such an injunction would not respect the applicable fundamental rights.

It is true that the protection of the right to intellectual property is enshrined in the Charter of Fundamental Rights of the EU. 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.

In the present case, the injunction requiring the installation of a filtering system involves monitoring, in the interests of copyright holders, all electronic communications made through the network of the internet service provider concerned. That monitoring, moreover, is not limited in time. Such an injunction would thus result in a serious infringement of Scarlet’s freedom to conduct its business as it would require Scarlet to install a complicated, costly, permanent computer system at its own expense.

What is more, the effects of the injunction would not be limited to Scarlet, as the filtering system would also be liable to infringe the fundamental rights of its customers, namely their right to protection of their personal data and their right to receive or impart information, which are rights safeguarded by the Charter of Fundamental Rights of the EU. It is common ground, first, that the injunction would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data. Secondly, the injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications.

Consequently, the Court finds that, in adopting the injunction requiring Scarlet to install such a filtering system, the national court would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the right to receive or impart information, on the other.

Accordingly, 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.

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