Court says internet firms ‘cannot be forced to filter content’

Consumer groups and internet service providers welcome European Court of Justice judgment.

The European Court of Justice today ruled that internet service providers (ISPs) cannot be forced to install a filtering system to prevent illegal downloading.

The court’s judgment was based on a case dating from 2004 in which SABAM, a company based in Belgium that manages copyright for authors, composers and editors, took Scarlet, a Belgian ISP, to court because users were illegally downloading music.

Belgium’s Court of First Instance ordered Scarlet, which is part of the telecoms company Belgacom, to introduce a monitoring system that would prevent users from illegally downloading.

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But Scarlet launched an appeal, claiming that the decision was incompatible with EU law.

Today, a statement issued by the European Court of Justice (ECJ) backed that appeal, stating that the obligation would “impose general monitoring”, which would be incompatible with the directive on electronic commerce and would “result in a serious infringement of Scarlet’s freedom to conduct its business”.

The ECJ added that, while holders of intellectual property rights were able to apply for injunctions against ISPs, national rules had to respect limitations arising from EU law.

The ECJ said: “The effects of the injunction would not be limited to Scarlet, as the filtering system would also be liable to infringe the fundamental rights of its customers, namely their right to protection of their personal data and their rights to receive or impart information, which are safeguarded by the Charter of Fundamental Rights of the EU.”

ISPs and consumer groups welcomed the judgment.

Malcolm Hutty, president of the European Internet Service Providers Association (EuroISPA), said that the ruling was “of fundamental importance for the future of the internet and the development of a strong digital single market”.

He added: “Considering the major contribution that the internet industry can make to economic recovery, it was not the time to put the innovation of the internet at risk.”

Monique Goyens, the director-general of the European consumers’ organisation BEUC, said that the judgment sent “a crystal-clear signal”.

“Internet providers cannot be asked to police consumers’ use of the web,” she said. “Such monitoring and harsher enforcement is the wrong answer.”
 
Daniel Friedlaender, of the recording industry trade body IFPI, said work was still going on to prevent illegal downloading.

He said: “In this particular case, the court rejected the content-filtering measure presented by the Belgian court as too broad.

“However, this does not affect the forms of ISP co-operation that IFPI advocates, including graduated response and the blocking of rogue websites, which are already being implemented in countries across Europe.”

Innocenzo Genna, an independent advisor on EU telecoms and internet regulation and a board member of EuroISPA, said that the decision would have a “dramatic impact” in the national and European debate regarding copyright infringement.

He said that the judgment would now provide solid guidance for the European Commission as it prepares its strategy for the development of digital content, its fight against online piracy and rules for electronic commerce.

He said that the ruling supported the position taken by Neelie Kroes, the European commissioner for the digital agenda, “whereby the development of digital content in the internet needs new business models and reform of the copyright system, rather than strengthening repressive measures”.