1 December 2011Copyright

CJEU: web filtering "not a fair balance"

The Court of Justice for the EU (CJEU) has ruled that copyright holders cannot ask Internet service providers (ISPs) to filter out illegal content.

The CJEU delivered its preliminary ruling in Scarlet Extended SA v Sabam et al in November 2011.

Sabam, a Belgian company responsible for authorising music rights, discovered in 2004 that ISP Scarlet’s subscribers were downloading its content illegally using peer-to-peer networks on the Internet.

Sabam complained and the Brussels Court of First Instance ordered Scarlet to use webfiltering technology to prevent its subscribers from exchanging files that infringe copyright over the Internet.

The ISP appealed against this decision. It said that the injunction obligated it to monitor communications on its network and so was incompatible with the E-Commerce Directive.

The Brussels Court of Appeals referred the matter to the CJEU. It asked the CJEU to clarify whether a national court could order an ISP through injunctive relief to install a system for filtering all electronic communications so that illegal files could be identified.

The CJEU found that copyright owners could not seek an injunction that would violate a limitation in the E-Commerce Directive, which prohibits national authorities from adopting measures that would require an ISP to carry out general monitoring of information that is transmitted on its network, according the CJEU.

The CJEU added that fundamental rights such as IP protection have to be balanced with the rights of ISPs to conduct business and the rights of ISP subscribers to have their personal data protected.

In its judgment, the CJEU concluded: “It must be held that, in adopting the injunction requiring the ISP to install the contested filtering system, the national court concerned 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 freedom to receive or impart information, on the other.”

In a statement, Sabam said that authors were “worried about the decision”, adding that it will be looking at alternative courses of action for combating online copyright infringement and protecting authors and their works.

ISPs are pleased with the CJEU’s ruling. Internet Service Providers’ Association (ISPA) secretary general Nicholas Lansman said: “The ISPA welcomes the European ruling that ISPs cannot be required to engage in large scale filtering and blocking of all users’ communications.

“ISPA believes that such a system would have been disproportionate and restricted the innovation and growth of the Internet at a time when its contribution to the economic recovery is vital.”

The case has now been referred back to the Brussels Court of Appeals.

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