EU law does not allow national courts to force ISPs to filter their networks
A landmark ruling (PDF) at the European Court of Justice has ruled that a decision by the Belgian courts to force the implementation of a filtering system at the Belgian Internet Service Provider (ISP) Scarlet was incompatible with the Directive on electronic commerce. The ruling in the Belgian courts of SABAM (Belgian society of authors, composers and publishers) vs Scarlet, dating back to 2007, saw Scarlet forced to filter copyright infringing material or to face fines. The company decided to dispute the decision suggesting to the Brussels Court of Appeal that the injunction failed to comply with EU laws. The appeal court then asked the EU Court of Justice to determine whether it was legal for an EU member state to force filtering on a service provider.
The court decided that the rules and injunctions under national rules must respect the limitations of the European Union. National authorities, according to the E-Commerce directive, must not require an ISP to carry out general monitoring of the information that is transmitted on its network. The injunction put forwarded by the Belgian court also limited Scarlet's freedom to conduct business, as it was required to install the filtering system at its own expense.
The injunction would also affect Scarlet's customers, and the the EU courts have ruled that it would infringe upon their protection of personal data and right to receive or impart information, which are rights set out in the Charter of Fundamental Rights of the EU. The ruling says that IP addresses, which would be collected by the system are protected personal data and that the blocking could potentially limit the ability of people to transmit lawful content due to the systems in place being unable to adequately distinguish between lawful content and unlawful content.
"In adopting the injunction requiring Scarlet to install such a filtering system, the national court would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the right to receive or impart information, on the other.
Accordingly, the Court’s reply is that EU law precludes an injunction made against an internet service provider requiring it to install a system for filtering all electronic communications passing via its services which applies indiscriminately to all its customers, as a preventive measure, exclusively at its expense, and for an unlimited period.EU Court of Justice
The Belgian court is now required to decide whether to accept the appeal by Scarlet using the ruling set out by the European court. This could have huge affects on existing laws in different countries, including the Digital Economy Act here in the UK, and HADOPI, used in France to force service providers to filter and block unlawful content. Injunctions which have forced broadband service providers to block access to websites such as the Newzbin could now be untenable, and we will likely see providers fighting any requests to do so.