The EU Court of Justice has ruled that Belgian ISP Scarlet cannot be forced to monitor its customers’ internet traffic and block them from downloading infringing music and video files. The ruling could have huge implications for legislation in EU member states, including the UK’s Digital Economy Act.
The case had been brought by Belgian collecting society SABAM, and dates back to 2004. Belgian courts had ordered Scarlet to block illegal P2P downloads, but the ISP appealed. Here’s the key section of today’s ruling from the EU court:
“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 explains.
“Such an injunction does not comply with the prohibition on imposing a general monitoring obligation on such a provider, or with the requirement to strike a fair balance between, on the one hand, the right to intellectual property, and, on the other, the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information.”
You can read the full ruling here. It goes on to explain that IP rightsholders may apply for injunctions against ISPs “whose services are being used by a third party to infringe their rights”, but that national legislation in this score must respect EU laws including the E-Commerce Directive: “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 the Scarlet case specifically, the EU Court finds that complying with the particular injunction recommended by the Belgian court “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.”
There is more pain for rightsholders in the ruling, too:
“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.”
It remains to be seen what this means for the implementation of the Digital Economy Act in the UK, not to mention for companies who have been touting their monitoring technologies to ISPs across the EU.