Peter A Clarke

An advocate general of the European Court of Justice (ECJ), advised that a Belgian court’s ruling to filter traffic that infringed copyrights belonging to members of artists’ rights agency Sabam (Société belge des auteurs compositeurs et éditeurs) would violate rights guaranteed under EU law.In 2010 the Brussels Court of Appeal said it could not rule on the matter without first referring two questions to the European Court of Justice (ECJ). Brussels has asked the ECJ to determine if delivering an injunction against ISPs forcing it to filter content suspected of copyright infringement contradicts a person’s right to privacy and protection of personal data. It also asked the ECJ if a national court should balance the extent with which it orders screening to take place with the impact it would have on those fundamental rights.

The advice (taken from translated extracts – complete translation is not available yet) provides:

“The installation of the filtering and blocking system is a restriction on the right to respect for the privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights..”

“A restriction on the rights and freedoms of internet users … would be permissible only if it were adopted on a national legal basis which was accessible, clear and predictable,” Villalón said. “

“Neither the filtering system, which is intended to be applied on a systematic, universal, permanent and perpetual basis, nor the blocking mechanism, which can be activated without any provision being made for the persons affected to challenge it or object to it, are coupled with adequate safeguards,” the Advocate General said, according to the statement.

SABAM, a Belgian artists and authors’ rights group, had won a court order in 2007 forcing ISP Scarlet Extended to create a system to block users from illegally downloading copyrighted material.

Scarlet appealed the original decision, which had given it six months to devise a system to block illegal downloads. The ISP said at the time that the ruling would force ISPs to carry out “invisible and illegal” checks on an internet users’ activity.

Scarlet had opposed integrating software called Audible Magic that would identify illegal content on file sharing networks, and appealed the decision to Brussels Court of Appeal.

The EU’s Copyright Directive says copyright owners can obtain a court order against intermediaries whose services are used for piracy. But the E-Commerce Directive says that ISPs are generally not responsible for the activity of customers and that member states must not put ISPs under any obligation to police illegal activity on its service.