In a major landmark ruling today, the European Court of Justice (ECJ) said that  that ISPs may not be asked to filter Internet content for copyright enforcement  purposes. The effect of the ruling will extend into every Member State,  where courts are being asked to impose injunctions on ISPs and governments pressured to bring in filtering measures.

  The  ECJ said that a filtering requirement would contravene the e-commerce directive, as well as the fundamental rights of European citizens. Moreover, it said that there is nothing under EU law to say that copyright is absolutely protected.

The ruling relates the Belgian case of Sabam v Scarlet.  Sabam is the Belgian collecting society which had gone to court asking for the ISP, Scarlet, to monitor and block peer-to-peer transfers of  music files which it represented. Sabam would not only represent Belgian music, but also international – eg British – music, so such an injunction could have widescale ramifications.

  The Belgian High Court had referred a question to the ECJ asking whether EU law would preclude an injunction asking an ISP to filter for copyrighted content, with a view to blocking the transfer of those files, including as a  preventative measure.

 The ECJ ruling has declared that EU law would preclude such an injunction to filter. Specifically, it said that the injunction requested would require the ISP to actively   monitor all of its customers’ traffic,  which would contravene the E-commerce directive. The court further said that such an injunction would infringe the right of Internet subscribers  to privacy and to freedom of expression.

 Interestingly, the ECJ has additionally declared that  there is nothing in EU legal framework or in EU case law ‘ to suggest that copyright is not  inviolable and must for that reason be absolutely protected’.

 So in other words, copyright does not have absolute protection which would trump other rights. Courts and national governments are bound under EU law to respect  a fair balance of all rights.

 In light of other judgements such as 20th Century Fox v BT (Hollywood v BT: the wrong kind of knowledge? ), this ruling has very serious implications.

 Other commentary on the Sabam v Scarlet ruling in the ECJ  is available from  LINX  and La Quadrature du Net  and EDRi

 Iptegrity is made available under a non-commercial Creative Commons licence.

Please cite Monica Horten, Sabam v Scarlet: European Court rules that ISPs can’t be asked to filter ,, 24 November 2011

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