The Court of Justice of the European Union rules that EU law precludes an injunction requiring an ISP to install a system for filtering Web traffic.
Court of Justice of the European Union ruled that Internet service providers
cannot be forced to continually monitor Web traffic in an effort to stem
copyright infringement efforts. This case has its origin in a dispute between
Scarlet Extended SA, an ISP, and SABAM, a Belgian management company, which is
responsible for authorizing the use by third parties of the musical works of
authors, composers and editors.
2004, SABAM established that users of Scarlet's services were downloading works
in SABAM's catalog from the Internet, without authorization and without paying
royalties, by means of peer-to-peer networks (a transparent method of file
sharing that is independent, decentralized and features advanced search and
Brussels Court of First Instance ordered Scarlet, in its capacity as an ISP and
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 containing a musical work in SABAM's repertoire by means of
peer-to-peer software. Scarlet appealed to the Brussels Court of Appeal,
claiming the injunction failed to comply with EU law because it imposed on
Scarlet a general obligation to monitor communications on its network,
something that is incompatible with the European Parliament's directive on
electronic commerce and with fundamental rights.
its judgment, the court said holders of intellectual-property rights may apply
for an injunction against intermediaries, such as ISPs, whose services are
being used by a third party to infringe their rights. However, in this case,
such an injunction would 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. In addition, the court
said 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.
the court found 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
court ruled that EU law precludes an injunction made against an ISP 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.
Nathan Eddy is Associate Editor, Midmarket, at eWEEK.com. Before joining eWEEK.com, Nate was a writer with ChannelWeb and he served as an editor at FierceMarkets. He is a graduate of the Medill School of Journalism at Northwestern University.