ISPAI Welcomes Clarification Provided by European Court Ruling

November 24, 2011

copyright

The European Court of Justice has today published its judgement 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.”

This ruling reflects the principles underlying ISPAI’s position on appropriate measures to deal with copyright infringement by Internet users.

 

The Judgement detail can be found here.

 

Below ISPAI’s Press Release on this judgement

General Monitoring Obligation Incompatible with eCommerce Directive and Fundamental Rights

EU LAW PRECLUDES THE IMPOSITION OF 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 Court of Justice of the European Union ruled today in the long-awaited Scarlet SABAM case, holding that a general obligation for an ISP to monitor communications on its network is incompatible with the Directive on Electronic Commerce and with fundamental rights.

In 2004, SABAM, a Belgian music copyright group, was granted an injunction against ISP Scarlet, ordering it to make it impossible for its customers to send or receive electronic files containing musical works in SABAM’s repertoire. The Belgian Court of Appeals, on appeal from Scarlet, referred this case to the CJEU, whose ruling today presents a positive outcome for ISPs across Europe.

This outcome is of particular importance for us since the Department of Jobs, Enterprise and Innovation in June tabled wording for a Statutory Instrument which would purportedly bring Ireland into line with its European obligations under the Copyright and eCommerce Directives. The injunctions regime provided for in the broad wording of the proposal, however, could potentially encompass not only blocking but mass filtering obligations and furthermore, the eventual introduction of a graduated response system is not inconceivable in these conditions. Today’s ruling will certainly set limits on this.

The CJEU has stated that the imposition of such an injunction would result in a serious infringement of Scarlet’s freedom to conduct its business as it would require the installation of costly and complicated measures exclusively at its own expense. ISPAI has always condemned the improper use of our members’ networks to illicitly obtain copyrighted works, and has continually advocated the development of new business models exploiting the Internet to the benefit of musicians and artists

If measures were to be imposed on our members, they should never interfere with their freedom to conduct legitimate business or force them to expend unreasonable costs. Today’s ruling sets an extremely important precedent for ISPs and will undoubtedly be seen as a landmark judgment for the digital age.

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For the European perspective on today’s judgement, one can find below EuroISPA’s Press Release:

Scarlet Extended Case: the European Court of Justice’s Clarification Will Foster Innovation and Growth

Brussels, 24 November 2011 – The European Internet Services Providers Association (EuroISPA) welcomes the Court of Justice’s ruling that network providers cannot be required to engage in large scale filtering of all users’ communications

EuroISPA and its members welcome the Court of Justice’s clarification in the Scarlet extended case that existing EU law preclude network providers from implementing systems for large scale filtering and blocking of users’ electronic communications. This ruling guarantees the protection under EU law of fundamental rights and the freedom of a network provider to conduct its business. Intellectual property rights should be respected but are not inviolable, and disproportionate technical enforcement that infringes on the rights of others is contrary to EU law.

The court ruled that requiring Internet Service Providers to conduct general filtering of Internet traffic to prevent copyright infringement is incompatible with the Electronic Commerce Directive and with fundamental rights.  Requiring an ISP to install such a complicated, costly computer system at its own expense is a serious infringement of the freedom to conduct business. What is more, such systematic analysis of all content passing through the network undermines both the customers’ right to protection of their personal data and their right to receive and impart information.

The ruling from the Court of Justice of the EU will have serious implications for content blocking systems imposed on ISPs in other Member States, especially where these are also maintained at the ISP’s expense.

“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”, said Malcolm Hutty, President of EuroISPA

“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”, he continued.

Background

By a judgment on 29 June 2007, the Belgian ISP Scarlet was ordered to install a filtering system to monitor all peer-to-peer traffic on its network and to block  the exchange of  files which were included in the repertoire of collecting society SABAM. Scarlet appealed against that judgment to the Court of Appeal of Brussels, which must now decide whether to uphold the measure adopted against Scarlet. In that context, the Court sought a ruling from the Court of Justice on whether EU law permits national courts to order ISPs to install a system for filtering and blocking electronic communications.

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