A happy outcome in the Scarlet/Sabam case: The Court of Justice is opposed to the generalized filtering of networks
24-11-2011
Brussels, 24 November 2011 - Today, the Court of Justice of the European Union (CJEU) gave its long-awaited judgment in the Scarlet/Sabam case and ruled that an Internet Service Provider (ISP) cannot be ordered to deploy a generalized filtering system on its network to block the exchange of musical files not authorized by the copyright holders.
In effect, the CJEU has recognized that the deployment of such a filter would not respect the balance of interests required by EU law between on the one hand, the different fundamental rights of our social order, namely the protection of the intellectual property rights of authors and artists, and on the other, the legal provisions aimed at avoiding any preventive censorship on the Net and allowing ISPs to provide high-quality services at reasonable costs for users, to protect their fundamental rights to privacy, freedom of expression and information, and secrecy of telecommunications.
The main question put to the CJEU was whether EU law permits a national court to order an ISP to install – at its own expense, as a preventive measure and for all its customers – a system for filtering all electronic communications in order to block the transfer of any electronic files containing a work for which Sabam holds the copyrights.
In its judgment of 24 November 2011, the Court of Justice has ended the controversy and concurs with the position defended by Scarlet and Belgacom for several years by confirming that such a filtering system is not compatible with the applicable European and Belgian legal framework.
The Court therefore rules that a court order imposed on an ISP to install a filtering system of any kind on its network is illegal because it infringes Article 15 of the Electronic Commerce Directive, which states that "Member States shall not impose a general obligation on providers... to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity".
Scarlet and Belgacom welcome this decision. It is essential to safeguard the coexistence, based on equality, of the pillars of information society, namely, free access to the Internet, the protection of intellectual property rights, the right to freedom of expression and information, the absence of censorship, the right to privacy and secrecy of telecommunications, and the freedom of electronic commerce.
This judgment underlines the importance of the neutrality of ISPs with regard to the transmission of information, and reiterates that the economic and legal responsibility in the fight against illegal downloading of protected works should not solely be delegated to ISPs.
Belgacom and Scarlet would point out, however, that they remain concerned about the problem of illegal downloading.