[LINK] TC: 'EU ISPs can't be forced to filter'

Roger Clarke Roger.Clarke at xamax.com.au
Fri Nov 25 06:28:11 AEDT 2011

EU Court Rules ISPs Can't Be Forced To Filter Out Illegal Content
24 November 2011  -  posted 5 hours ago

The European Court of Justice this morning ruled that content owners 
can not strong-arm Internet service providers (ISPs) into filtering 
out copyright-infringing content.

[2-page Media Release here: 

This case has its origin in a dispute between ISP Scarlet and SABAM, 
a Belgian management company responsible for authorizing the use by 
third parties of the musical works of authors, composers and editors. 
In 2004, the right-holders group established that users of Scarlet's 
services were downloading such musical works from its catalogue by 
means of peer-to-peer (p2p) file-sharing networks.

Belgium's Court of First Instance ordered Scarlet, on pain of a 
periodic penalty, to bring those copyright infringements to an end by 
making it impossible for its customers to send or receive in any way 
electronic files - a filter, in other words. Scarlet appealed the 
decision, claiming the ruling was incompatible with EU law as well as 
the e-Commerce Directive.

Indeed, EU law says national authorities must not adopt measures 
which would require an ISP to carry out general monitoring - let 
alone filtering - of the information that it transmits on its network.

Thus, Europe's highest court this morning ruled:

"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."

[There goes another hopelessly ambiguous utterance by a court.  Is 
that a Boolean-& or a 'not-necessarily inclusive and'.  Put another 
way, is the statement true that "EU law precludes [an ISP being 
required] to install a system for filtering all electronic 
communications passing via its services", or must one or more of the 
following conditions also hold, in order for it to be true - 
indiscriminateness?  preventive purpose?  at its expense?  unlimited 

The European Court of Justice said the filtering system would also be 
liable to infringe the fundamental rights of an ISP's customers, 
namely their right to protection of their personal data and their 
right to receive or impart information.

The court also said that while intellectual property rights are 
enshrined in EU law, there is "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".

Common sense, really, but always good to see a court agree with it.

Roger Clarke                                 http://www.rogerclarke.com/
Xamax Consultancy Pty Ltd      78 Sidaway St, Chapman ACT 2611 AUSTRALIA
                    Tel: +61 2 6288 1472, and 6288 6916
mailto:Roger.Clarke at xamax.com.au                http://www.xamax.com.au/

Visiting Professor in the Cyberspace Law & Policy Centre      Uni of NSW
Visiting Professor in Computer Science    Australian National University

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