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.