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A European Court of Justice official is finding against a verdict which said a Belgian ISP should filter out copyright-infringing content from its network.
In a case dating back to 2007, the ISP, Scarlet had been ordered to strip from its transmissions unuthorised transfers of music whose rights are heled by the Belgian Society of Authors, Composers and Publishers (SABAM).
But Pedro Cruz Villalón, who, as an advocate-general to the European Court of Justice (ECJ), advises the continent’s highest court, has declared: “The installation of the filtering and blocking system is a restriction on the right to respect for the privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights” (via Out-Law).
The UK government must take heed of Villalón’s advice since, out of the embers of its Digital Economy Act, it is working with British ISPs and content rightsholders to table proposals under which ISPs must block access to websites deemed to be hosting content without authorisation.
Villalón says: “A restriction on the rights and freedoms of internet users … would be permissible only if it were adopted on a national legal basis which was accessible, clear and predictable.”
But, unlike Belgium’s wide-ranging pre-emptive filtering order, UK site blocking procedures were originally mandated, in the Digital Economy Bill, to occur only after an injunction is obtained against an infringing host – something Villalón’s appears more comfortable with.
Unlike the action Belgium’s court asked Scarlet to enact, which would install Audible Magic filter software to monitor all traffic for unauthorised transmissions, the UK’s proposed measure would target only individual hosts of infringing material.
Out-Law: “The EU’s Copyright Directive says copyright owners can obtain a court order against intermediaries whose services are used for piracy. But the E-Commerce Directive says that ISPs are generally not responsible for the activity of customers and that member states must not put ISPs under any obligation to police illegal activity on its service.”
The ECJ advocate-general has given his opinion because the ECJ was asked to offer its input by the Brussels Court of Appeal, to which Scarlet had appealed the earlier order against it.