Brussels, 15/04/2011 (Agence Europe) - According to Advocate General Pedro Cruz de Villalón, a measure ordering an internet service provider to install a system for filtering and blocking electronic communications in order to protect intellectual property rights is a restriction on the right of respect for the privacy of communications and the right to protection of personal data. Under the terms of the Charter of Fundamental Rights, such a measure would only be permissible if it were adopted on a national legal basis which was accessible, clear and predictable, allowing conduct to be regulated.
In this case (C-70/10), the Court was referred to by the Cour d'appel in Brussels regarding the legality, under the EU Charter of Fundamental Rights, of a ruling made in Belgium in 2007 against the internet service provider, Internet Scarlet Extended SA, ordering it to bring those copyright infringements to an end by making it impossible for its customers to send or to receive in any way, by means of peer-to-peer software in particular, files containing a musical work in the repertoire of the Société belge des auteurs compositeurs et éditeurs (Sabam).
In his conclusions, the advocate general notes above all that this judgement creates a general obligation, which will be extended in the longer term on a permanent and preventive basis to all internet service providers (without effective infringement having taken place or the risk of imminent infringement to intellectual property rights) involving the setting in place of a filter for all communications through the Scarlet network to detect those that involve infringement of copyright, and blocking them when they are sent or received. This Belgian measure, which should normally apply only to Scarlet, would thus affect a countless number of legal and natural persons (web surfers, service providers, information society services users or providers), whether they are customers of Scarlet or not and independently of the state in which they reside. Secondly, by making it an obligation for Scarlet to achieve results regarding the protection of copyright and by making this access provider bear the cost of setting up the filtering and blocking system, this judgement would largely delegate to internet access providers the legal and economic responsibility of combating the illegal downloading of pirated works.
On these bases, the advocate general considers that the setting in place of this filtering and blocking system presents itself as a restriction to the right of privacy of communications and the right to protection of personal data, as well as the freedom of information, guaranteed under the Charter of Fundamental Rights. Although this Charter admits the possibility of limiting the exercise of such rights and freedoms on condition that this limitation is in line with the law, Cruz de Villalón considers that it cannot be held that the obligation on internet service providers to install the filtering and blocking system at issue entirely at their own expense, was laid down expressly and in clear, precise and predictable terms in the Belgian statutory provision at issue. Furthermore, this communications filtering and blocking system does not provide sufficient guarantees insofar as it is destined to apply permanently, systematically and universally without there being the possibility for persons affected to challenge or oppose it. (F.G./transl.jl)