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The European Advocate General says that network filtering for copyright will breach privacy and free expression rights. But his Opinion has further relevance for any mandate on ISPs to install filtering systems for copyright purposes.

The European Advocate General has said that filtering and blocking systems which monitor users in order to prevent downloading or transmission of copyrighted content is a restriction on the right to privacy and data protection.

The Advocate General's statement is written in his Opinion issued today, relating to a case which is current in the Belgian courts. The case of Sabam v Scarlet, where Sabam is the Belgian music copyright society, and Scarlet is a Belgian ISP. The judge in the case had referred a number of questions to the ECJ in order to obtain its views before making a ruling.

The questions relate to the use of network filtering technologies for copyright enforcement, and to the imposition of a mandate for ISPs to install filtering technology for that purpose. In Sabam v Scarlet, the ISP was being asked to filter all content for songs in Sabam's repertoire and to block transmissions of that content by users. Scarlet was being asked to pay for the filtering and blocking system entirely out of its own funds.

The Advocate General's Opinion has three important statements. Firstly, he

states that the installation of such a filtering and blocking system is a restriction on the right to privacy, as protected by the EU Charter of Fundamental Rights. It would also, he says, restrict freedom of expression.

There is no parallel provision to safeguard Internet users against any intrusion or breach of their privacy.

And the mandate placed on the Scarlet would have the effect of delegating the legal responsibility - ie liablity - for copyright enforcement onto the ISP. He considered that it constitutes a general obligation to monitor (which is not permitted under EU law).

Interestingly, he comments that such a mandate would exist on a perpetual basis. And that blocking would take place - not in respect of any specific accusation against a user - but as a general preventative measure. In this respect, the measures entailed are quite different from 3-strikes measures.

La Quadrature du Net said that the ruling should put a spanner in the Commission's anticipated proposals for its review of the IPR Enforcement directive.

The Advocate General is recommending that, in its formal answer to the Belgian court, the European Court of Justice should make a declaration consistent with the following legal position :

"that EU law precludes a national court from making an order, on the basis of the Belgian statutory provision, requiring an internet service provider to install, in respect of all its customers, in abstracto and as a preventive measure, entirely at the expense of the internet service provider and for an unlimited period, a system for filtering all electronic communications passing via its services (in particular, those involving the use of peer-to-peer software) in order to identify on its network the sharing of electronic files containing a musical, cinematographic or audio-visual work in respect of which a third party claims rights, and subsequently to block the transfer of such files, either at the point at which they are requested or at the point at which they are sent. "

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The correct attribution for this article is: Monica Horten (2011) http://www.iptegrity.com 14 April 2011.This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed.

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About Iptegrity

Iptegrity.com is the website of Dr Monica Horten. I am an  independent policy advisor, with expertise in online safety, technology and human rights. I am a published author, and post-doctoral scholar. I hold a PhD from the University of Westminster, and a DipM from the Chartered Institute of Marketing. I cover the UK and EU. I'm a former tech journalist, and an experienced panelist and Chair. My media credits include the BBC, iNews, Times, Guardian and Politico.

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