European Court Says Gov’ts Can’t Force ISPs To Snoop


A European ruling says ISPs can’t be forced to monitor user traffic for copyright violations

Online freedom activitists have welcomed a ruling by the European Court of Justice, that says national authorities cannot force ISPs to violate their users’ rights in favour of copyright protection.

National courts in the EU wanting to identify illegal file sharers cannot force ISPs to monitor all user communications, according to a landmark ruling from the European Court of Justice (ECJ), which settles a 2004 dispute beween ISP Scarlet Extended SA, and rights management company Sabam.

In 2004, Sabam accused Scarlet users of downloading works from its catalogue using peer-to-peer networks, without authorisation and without paying royalties. A Belgian court found in favour of Sabam and ordered Scarlet, on pain of a periodic penalty, “to bring those copyright infringements to an end by making it impossible for its customers to send or receive in any way electronic files containing a musical work in Sabam’s repertoire by means of peer-to-peer software.”

In its appeal, Scarlet claimed that the injunction failed to comply with EU law and was incompatible with the directive on electronic commerce, and with fundamental rights.

Violation of rights

The ECJ agreed and found that using such filtering systems indiscriminately would infringe on people’s rights to conduct business, their right to protection of personal data and to receive or impart information.

The court said there needs to be a balance between these rights and the right to intellectual property, but added that in cases that did not clash with the E-Commerce Directive, holders of intellectual-property rights would still be able to apply for  injunctions against intermediaries whose services are being used by a third party to infringe their rights.

However, national authorities must not adopt measures which would require an Internet service provider to carry out general monitoring of the information that it transmits on its network.

“It is true that the protection of the right to intellectual property is enshrined in the Charter of Fundamental Rights of the EU. There is, however, nothing whatsoever in the wording of the Charter or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected. As such, 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,” said the court in a statement.

Reject extremist measures

“The ruling stresses once again that instead of keeping on pushing for more repression EU policy makers should work towards much needed reform of copyright that would protect citizens’ freedoms. Rejecting ACTA and other extremist measures imposed in the name of copyright would be a first step,” said Jérémie Zimmermann, co-founder and spokesperson of citizen advocacy group La Quadrature du Net.

ACTA is the controversial Anti-Counterfeiting Trade Agreement, which was published in 2010.

“The relentless extension of filtering to new fields must be stopped, and lawmakers across Europe must commit to repealing any law enforcement measure that disrespects fundamental rights,” he added.

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