EU court rules policing the Internet is illegal


This article is part of our special report Innovation and the Digital Economy.

The European Court of Justice issued yesterday (24 November) a historic ruling establishing that member states cannot impose the filtering of the Internet for the purpose of preventing illegal downloads of copyrighted files.

“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,” the court ruled.

The ruling was issued in the long-standing case opposing a Belgian copyright management company, SABAM, and a Belgian Internet service provider, Scarlet. In 2004, SABAM requested Scarlet to filter the online activities of its users to avoid that illegal downloads, affecting copyright holders, were carried out.

The Belgian judges asked the opinion of the EU Court of Justice before delivering their own ruling on this thorny case.

National measures under threat

The decision of the EU Court sets an historic precedent that will have an impact on legislation adopted or being adopted in several member states.

Measures based on filtering technologies have been already proposed in Italy, Ireland the UK, and national judges have imposed monitoring to ISPs and right-holders in several countries.

In France, the so-called Hadopi law envisages filtering measures used by right-holders and provides for semi-automatic interruption of the service for users who repeatedly broke the rules.

All these provisions are now under threat of being successfully challenged in the courts after yesterday’s ruling.

The ruling is a windfall for consumers’ protection groups, supporters of a free Internet, and Internet service providers as they will not be forced to police the Net (with all the costs that this implies). However, the decision is at the same time dealing a heavy blow to online copyright protection across the EU, which from now on will be more difficult to enforce.

The European Commission officially welcomed the ruling, but in reality the court clashed with the prevailing views within the EU executive, which was more inclined to interpret existing rules as favourable to filtering.

The commissioner in charge of the dossier, Michel Barnier, has long been a champion of copyright protection, in line with the interests of his country, France, which is one of the powerbases of the EU culture industry.

In the coming weeks, the Commission will propose a revision of the e-commerce directive which so far had been interpreted as favourable to monitoring the Internet. This will represent a litmus test of the intentions of the EU executive.

The European Commission backed the ruling of the Court. “We warmly welcome the clarification made by the Court of Justice on the interdiction, envisaged in the e-commerce directive, to impose obligations for ISPs to monitor the Net. In Spring 2012 we will present a report on the application of the copyright directive that will deal with this. This ruling is very important because clarifies the situation and is also in line with our own interpretation,” said Chantal Hughes, spokesperson of EU Internal Market Commissioner Michel Barnier.

Dutch Green MEP Judith Sargentini said: “This ruling is an important landmark for efforts to guarantee a free and open Internet in Europe. Net neutrality and openness are fundamental principles on which the Internet has been founded and any moves to restrict this represent a violation of the freedom of expression, as well as undermining EU law. Instead of moving to restrict Internet freedom, we should instead recognise the overwhelmingly positive opportunities presented by an open Internet.”

“Today’s decision will have a dramatic impact in the national and European debate regarding copyright infringement in the Internet and the modalities to fight online piracy,” said Innocenzo Genna, EU telecoms and Internet regulation consultant.

“The ruling will now constitute a solid guidance for the European Commission, which in the next two years will have to shape the regime for the development of digital content in the Internet (Green Paper was just put in consultation); fight to online piracy (revision of copyright enforcement directive); basic rules for electronic commerce.

Monique Goyens, Director General of the European Consumers’ Organisation (BEUC) commented: “This judgment sends a crystal clear signal. Internet providers cannot be asked to police consumers’ use of the web. A general monitoring obligation is contrary to existing EU law. The court has backed this up and helped reemphasise consumers’ fundamental rights.”

“Such monitoring and harsher enforcement is the wrong answer. The judgment should make us all realise there’s a need to provide better, fairer and more easily accessible legal digital content for consumers across Europe. The online marketplace has proven fertile ground, consumers spend billions of euro each year. Trying to criminalise individual consumers for file-sharing is just singing into the wind,” she added.

Music sector lobbies and the wider online content production industry have triggered the introduction of a range of initiatives to reduce Internet piracy in Europe, such as exchanging songs, films and software without respecting copyright rules.

The toughest stance was adopted by the French government, which under the Hadopi law set up a new authority to monitor Web access and thus prevent illegal file-sharing. Other countries followed the French model.

The French approach triggered heated debates in Europe and in Brussels. During the negotiations of the so-called ‘telecoms package’, French MEPs tried to press the issue of online copyright protection by imposing obligations on Internet service providers. But the plan was dumped after strong pressure from the telecoms industry and consumers in support of free downloading and peer-to-peer websites.

European elections in 2009 saw the emergence of new one-issue parties focused on preventing limitations to free downloading. In Sweden, the Pirate Party won over 7% of the votes electing two MEPs to the current EU Parliament.

In 2010, the Pirate Parties International was founded in Brussels.

  • December 2011: The Commission is expected to publish proposals to review the e-commerce directive.
  • Spring 2012: Commission is set to publish review of Copyright Directive.

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