On January 13th 2011 the case ‘Scarlet Extended’ was heard by the European Court of Justice (“ECJ”). This case may very well be one of the most important cases for future of the free and uncensored Internet in the EU.
Facts and procedure
In 2007 the main Belgian collecting society SABAM (Belgian Society of Authors, Composers and Publishers) sought an injunction1 against the small Internet service provider („ISP“) Scarlet to force them to implement measures that would prevent any infringements to the intellectual property rights of the artists affiliated with SABAM. At first instance the Belgian court decided that Scarlet had to make it impossible, in any form, via peer-to-peer software, for its clients to send or receive electronic files containing musical works from the SABAM repertory.
Scarlet appealed against this decision claiming that it was technically impossible to comply with the order. On January 2010 the Court of Appeal of Brussels used the preliminary reference procedure2 to refer two questions to the ECJ before continuing to examine the case. The questions were
whether European law allows a national judge to impose to an ISP an obligation to implement a general preventive measure consisting of the filtering of electronic communications using peer-to-peer software with the objective to identify and block the exchange of copyright infringing material; and3
should the answer to the first question be affirmative, whether the national courts should apply the principle of proportionality.4
Internet filtering and the proportionality principle
According to the E-Commerce Directive (article 17), member states cannot „impose a general obligation to monitor or actively seek facts or circumstances indicating illegal activity“ on ISPs. At first sight this seems to prohibit Internet filtering by providers. However in this case it’s not an obligation imposed by the law of a member state on a provider, but a court order imposed in a specific case on a party to the case. The Copyright Directive ((59), p.16) clearly states „right holders should have the possibility of applying for an injunction against an intermediary (f.ex. an ISP) who carries a third party’s infringement of a protected work or other subject-matter in a network.“ This would open up the possibility of a court-ordered filtering system.
However any filtering system would have to be scrutinised under the proportionality principle5. The ECJ made it clear in the Promusicae case that national authorities and courts must interpret community and national law in a manner consistent with „fundamental rights“ and „the other general principles of Community law, such as the principle of proportionality“. This means that national courts must weigh fundamental principles like the right to (intellectual) property6 against the right to privacy7 and freedom of expression8.
One important point, and the one the ECJ will rely on in my opinion, is a paragraph from the Copyright Directive ((59), p.16) that leaves the conditions and modalities relating to injunctions concerning copyright infringement to the national law of the Member states. The court could, as it did on multiple occasions9, evacuate the problem of deciding this topic of policy by letting the member states and national courts room for interpretation. The result would be that the ECJ would allow national courts to order filtering systems by injunction, but under strict scrutiny of the proportionality of the measures.
In the (unlikely) event that the ECJ allows injunctions ordering a general filtering system a priori without application of the proportionality principle, all it would take to establish general surveillance of Internet traffic is for one rights holder to ask a national court for such an injunction. The „floodgates“ argument would play here: if Internet filters can be created to prevent copyright infringement, why not for other presumed illegal activities? This leaves the door wide open to a fully censored Internet. If an injunction forces an ISP to monitor the Internet traffic of his clients for any copyright infringing actions, the entire data transfer has to be monitored to filter out any illegal activities. That means that every client will have the entirety of his connections monitored. A situation that not only violates the right to privacy and data protection but also the presumption of innocence.
The other extreme would be that the ECJ extends the principle of „no general obligation to monitor can be forced on ISPs“ to or beyond injunctions. This is rather unlikely considering the provision on injunctions of the Copyright Directive.
Most likely though, the ECJ will leave the final evaluation to the member states and national courts, forcing them „only“ to respect the principle of proportionality. This way the ECJ avoids having to answer to a delicate policy question and put into question the current legal framework of some member states (e.g. France), without sacrificing fundamental rights at the benefit of copyright enforcement.
The E-Commerce Directive prohibits placing the obligation to filter the Internet on ISPs. As we see in France, Internet filtering in the name of copyright infringement can also be established by other means; be it by „voluntary“ government-malware or mass-prosecution a posteriori of Internet users. The responsibility to form a clear position against Internet filtering has to come from the EU Commission and Parliament and not from a court. However with the recent development in the #Censilia case, it seems very optimistic to hope for a voice of reason on this issue.
Comments by General Attorney are planned to be published on March 30th 2011.
- A court orders a party to do, or to refrain doing certain acts. ↩
- Under article 267 of the Treaty on the Functioning of the EU, a court of a member state can submit questions on the interpretation of EU law to the ECJ for resolution. The decision of the ECJ is binding on national courts. The main objective of the preliminary reference procedure is to unify the interpretation of EU law throughout the member states. ↩
- ISP-Liability & Media Law ↩
- ISP-Liability & Media Law ↩
- The proportionality principle is a general principle of Community law first laid down by the case Internationale Handelsgesellschaft from 1970. According to that principle, „the individual should not have his freedom of action limited beyond the degree necessary in the public interest“ (Advocate General in Internationale Handeslgesellschaft). ↩
- e.g. Article 17 of the Charta of Fundamental Rights of the EU and the Universal Declaration of Human Rights ↩
- e.g. Article 7 of the Charta of Fundamental Rights of the EU and Article 12 of the Universal Declaration of Human Rights ↩
- e.g. Article 11 of the Charta of Fundamental Rights of the EU and Article 19 of the Universal Declaration of Human Rights ↩
- cf. SPUC vs. Grogan on abortion rights in Ireland ↩