Advocate General of the European Court of Justice issues opinion on filtering and blocking of electronic communications

In the context of the fight against illegal file sharing, the Société belge des auteurs compositeurs et éditeurs (Sabam) is seeking to actively involve ISPs and to pressure them into installing filtering and blocking systems to halt unlawful peer-to-peer communications. To that end, SABAM applied for interim relief against Scarlet Extended SA, an internet service provider (ISP), on the basis of Article 87 of the Belgian Intellectual Property Act. This article provides that, where a third party uses the services of an intermediary to perpetrate an infringement, the courts are authorised to issue an order against that intermediary. Belgian Courts first followed SABAM's claims and ordered Scarlet to  block or  to make impossible the sending or the receiving by its customers of files containing a protected musical work, using peer-to-peer software, without the permission of the copyright holders (judgement of 29 June 2007). Scarlet was given a period of six months to abide by the ruling, on pain of a penalty payment of € 2,500 per day.



Scarlet has appealed that judgement before the Appeals Court of Brussels. Before rendering its judgement, the Court of Appeal is seeking a ruling from the  Court of Justice on whether European Union law and, in particular, the fundamental rights guaranteed by the Charter of Fundamental Rights, permits a national court to order in abstracto and as preventative measure an internet service provider to install a filtering and blocking system for all of its customers and for an unlimited period.



In its Opinion, Advocate General Cruz Villalón proposes that the Court of Justice should declare that EU law precludes a national court from issuing such an order. His reasoning is mainly based on the need to adequately protect the fundamental rights to privacy, data protection, secret of communications and freedom of expression in accordance with the European Charter of Fundamental Rights. The neutrality principle as contained in art. 15 of the E-Commerce Directive and which requires ISPs not to monitor the information they transmit or store is only mentioned incidentally.



Cruz Villalón first notes that such a Court order would not comply with the requirements of concreteness and individualisation usually expected from any reaction to a specific and well defined conduct (in this case copyright infringements). He finds that such measure would negatively affect several fundamental rights, namely the right to data protection, the right to privacy, the secret of communications and the freedom of expression. It is worth noting that the Advocate General considers that the right to data protection is affected insofar as the filtering and blocking implies the processing of IP addresses. In the present case such IP addresses will in most cases qualify as personal data due to the obligation imposed on ISPs under the Data Retention Directive to retain such IP addresses and to identify their owners.



Whereas he recognises the possibility to limit such fundamental rights to protect the right of others, namely the one of copyright holders, he however recalls that such restrictions should comply with the requirements set up by the European Charter of Fundamental Rights. This means that the restrictions should be proportionate (requirement that he does not examine in detail but which he finds not complied with) but first and foremost, they should rely on an appropriate legal basis. To this end, the law should be sufficiently clear, accessible and foreseeable.  In this case, it was not possible for Scarlet (the ISP) to foresee that article 87 of the Belgian Intellectual Property Act could act as a foundation for such a decision in view of the neutrality principle. Internet users would also not reasonably expect such measure to be implemented on a systematic and universal fashion without the required accompanying safeguards in the light of the right to data protection and to confidentiality of communications. He concludes by recalling that any restriction set by law should not only pre-exist any restriction to rights and freedoms but should also respect their "core" (contenu essentiel).



In the aftermath of the heated debates surrounding the fight against online copyright infringements, Cruz Villalón gives a clear signal in favour of solutions that rely on a strong democratic debate and that comply with the basic legal principles that should guide any balancing of interests, most particularly legality, necessity and proportionality. This Opinion nuances the ECJ judgement in the Promusicae case where the Court ruled that Member States, when transposing EU Directives, must strike a fair balance between the fundamental rights protected by the Community legal order, and must respect general principles of Community law, such as the principle of proportionality. It is now in the Court's hands to ratify such strong position in favour of fundamental rights.



Click here to download the conclusions of the Advocate General.