Brussels, 24/11/2011 (Agence Europe) - A national court cannot rule that an internet service provider must install a filtering system with a view to preventing the illegal downloading of files. Such an injunction would mean that the provider would have to actively monitor all customers' data, in violation of the directive on e-trade and customers' fundamental rights. Furthermore, it would run counter to the requirement that a fair balance must be struck between, on one hand, respect of the right of intellectual property and, on the other, free enterprise, the protection of personal data and the freedom to receive and impart information.
Such, in substance, is the content of the important decision reached by the EU Court of Justice on Thursday 24 November in Case C-70/10, in response to two questions from the Brussels Court of First Instance. The latter had received an application from an internet service provider (Scarlet) ordered to bring 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. Scarlet raised the objection that the injunction failed to comply with EU law because it imposed a general obligation to monitor communications on its network, something which was incompatible with the directive on electronic commerce, and to analyse personal data, which would be counter to EU law on fundamental rights on the protection of data and the secret of communication. The Belgian court therefore called on the EU Court of Justice to rule whether EU law allows a national judge to order an internet service provider to set up, in a general way and as a preventive measure, at the exclusive cost of the provider and without limit in time, a system for filtering electronic communications in order to identify illegal downloading of files.
The Court followed through the argument put forward by Scarlet, noting that, in order to prevent any breach of intellectual property rights, the injunction in question would make it an obligation for Scarlet to proceed to active surveillance unlimited in time of all economic communications on its network. This would be incompatible with the directive on e-trade and run counter to Scarlet's freedom to conduct its business as it would require Scarlet to install a complicated, costly, permanent computer system at its own expense. What is more, the filtering system would also be liable to infringe the fundamental rights of customers, namely their right to protection of their personal data and their right to receive or impart information, which are rights safeguarded by the Charter of Fundamental Rights of the EU. The filtering system would mean “a systematic analysis of all content and the collection and identification of users' IP addresses from which unlawful content on the network is absent”, and the injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. Consequently, the Court finds that “in adopting the injunction requiring Scarlet to install such a filtering system, the national court would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the right to receive or impart information, on the other”. (FG/transl.jl)