The "Sabam vs Scarlet"-case will be continued before the European Court of Justice.
In 2004, the Belgian authors’ collecting society Sabam initiated legal proceedings against the internet access provider Scarlet (formerly Tiscali) for alleged copyright infringements, which were being committed by Scarlet customers using peer-to-peer software on Scarlet’s network .
In an intermediate ruling, the Brussels court of first
instance considered the copyright infringements proven and appointed a
technical expert to assess the viability of possible solutions. In the final ruling of the first
instance court in 2007, Scarlet
was ordered to filter any infringing exchanges out of the peer-to-peer traffic of its customers. Subject to a penalty
payment per day of non-compliance with the court order, Scarlet was thus required to install
and maintain the necessary software to monitor this traffic. Should any infringement of copyright be detected by such software,
Scarlet would have to block the transfer of those files on its network. In the
months thereafter, Scarlet argued before the same court the technical impossibility to
comply with the order, keeping into account the state of the art of filtering technology, and obtained temporary relief.
Scarlet also appealed the said order before the Court of Appeals of Brussels. During this case, the Belgian Internet Service Providers Association (ISPA), represented by Geert Somers and Jos Dumortier of time.lex, and the major internet service provider Belgacom, intervened in the proceedings. Scarlet stressed in its appeal, among other points, the disproportionality of the order to filter all P2P traffic, and the complete ineffectiveness of the requested measure. Also, Scarlet argued that the systematic surveillance of internet users by their ISPs was illegitimate.
In its decision of 25 January 2010, the Brussels Court of Appeal referred the case to the European Court of Justice for a preliminary ruling on two questions. Firstly, the appeals court seeks to know whether the national courts, taking into account European legislation, may legitimately order Internet access providers to filter the peer-to-peer traffic of their customers and, if copyright infringements are detected, to block the transfer of the infringing files. If the Court in Luxembourg would answer the first question in the affirmative, then the Brussels Court of Appeal additionally seeks to know whether it should, when imposing this measure, apply the proportionality principle when judging the effectiveness and deterrent nature of the measure.
Because of this new procedural step, a ruling to settle the matter definitively is not expected within the next two years. The referral to the European Court of Justice illustrates that the Brussels Court of Appeal is conscious of the importance of the matter and the potential impact of its ruling on the entirety of the European Internet sector. The response of the Luxembourg court is therefore eagerly awaited.
For a copy of the ruling of the Brussels Court of Appeal, click here.