The European Court rules to balance the rights of copyright holders against citizenship rights. Finally some sense from the courts. The SABAM vs Scarlet case from Belgium has finally reached the end of the road. The European Court of Justice has ruled that EU Law prohibits national courts from forcing Internet Service Providers (ISPs) to filter and block all users, including alleged and proven copyright infringers.

The ruling balanced the rights of all Europe’s citizens, the rights of the ISPs and the rights of copyright holders and decided that

  • the right to freedom of speech and expression
  • the right to conduct a business
  • and the right to privacy

are all of significance and are not outweighed by copyright holder rights to tax the use of their content. Basically copyright holders are going to have find the criminals, not pursue the innocent.

The organisation European Digital Rights, in an article Scarlet/Sabam Ruling a vital victory for Internet freedoms argue that the ruling prohibits a national court, including the Supreme Court of the United Kingdom, the organisation once known as the House of Lords Judicial Committee, from instructing an ISP to install and run a monitoring and blocking system in the interests of copyright holders. In fact Sabam, the Belgian version of the Performing Right Society, asked,

whether a national court may order ISPs to install a filtering and blocking system for all its customers for an unlimited period, in abstracto and as preventive measure under EU law and if this was in line with the Charter of Fundamental Rights. The Court of Justice of the European Union answered that such a measure is contrary to European legislation and that it violates fundamental rights in particular the right to privacy, freedom of communication and freedom of information. It also breaches ISPs’ right to conduct business.

Phil Muncaster at,uk in an article European court rules that ISPs can’t be forced to block pirated content reports on the ruling and quotes the judgement as saying,

“EU law precludes the imposition of an injunction by a national court which requires an internet service provider to install a filtering system with a view to preventing the illegal downloading of files,”

The BBC report the ruling here….EDRI again, argue that

The measure requested by SABAM is only incompatible with EU law because it does not meet the legality test set out to enable restriction to fundamental rights, i.e. the criteria of proportionality, necessity and effectiveness.

Furthermore, law should be sufficiently clear, accessible and foreseeable, and it (sic) that particular case it was not.

It would seem that SABAM’s requests under the injunctions in the Belgian courts were exceptionally broad, but one conclusion we can draw is that SOPA-like laws cannot be passed by the national legislatures of EU member states, so what impact will this have in the UK. Surely this must change the context in which the appeal by BT and Talk Talk of the judgement in the DE Act judicial review occurs.

BT and Talk Talk ‘s lawyers argued in court earlier this year that the UK’s Digital Economy Act contravened several tenants of EU Law. Basically Justice Parker disagreed striking down the arguments that the Law had to be consulted with Commission, that it was in breach of ISP’s common carrier and single market obligations, that it was an overly onerous obligation placed by the state on a telco business. He also ruled that the law did not breach the ISP’s customers’ fundamental rights to privacy.
The Judical Review judgement can be read here…. My long review is published on this blog here. The judge defines certain discretion to the legislature; it would seem to me that the ECJ have narrowed this level of discretion.

Mr Justice Parker ruled that the “Initial Obligations Code” of the DE Act had not been published and therefore there was no need to consult the EU Commission, and nor could he review it. But one has to wonder if after this ruling whether the proposed “Technical Measures” to be applied to alleged copyright infringers under the DE Act will be deemed illegal on the grounds that they are disproportionate (and lets face it ineffective). AtThe UK court stated that proportionality was a matter forParliament, the ECJ my have stated that ts a matter for the courts. At least this ruling must ensure that the courts review and take seriously BT’s duty of privacy to its customer. BT and Talk/Talk plan to return to court to appeal the Regina vs Secretary of State judicial review. Let’s hope the robust ruling of the ECJ will make the Judge’s job easier.

The other major case in the UK is even more interesting. This is the newzbin2 case. If filtering and blocking is disproportionate, even if newzbin2 remains deemed to be a criminal site, surely the copyright holders will now have to pay for the site blocking. Also all BT’s caveats to the injunction which the judge dismissed must now be reviewed. The fact that

  • the injunction is unlimited in duration (disproportionate, and a factor in the ECJ’s ruling)
  • BT can’t moderate their compliance for emergency operational reasons without permission from the court, from the plaintiffs (disproportionate, restraint of trade, breach of consumer rights)
  • BT must pay for the enforcement (restraint of trade)
  • BT must apply the filtering to all their customers (many businesses and government customers don’t want/permit “Cleanfeed” filtering on their lines) (breach of freedom of information, restraint of trade), this might be a killer
  • BT have no right to claim consequential liability for false accusation (disproportionate)

It might not be a new dawn, but after the appalling run of legal precedents in the UK, Europe and the USA, this at least is a restatement that copyright trolling is not a human right because it’s not. The Copyright law is a political agreement and settlement between creators and the polity. They have no right to the last word.

See also

Sabam vs Scarlet, the People vs. Copyright
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