ISPs Can’t be Forced to Block File Sharing in the EU

The problem of trying to figure out how to handle online piracy and file sharing has been ongoing worldwide for many years now.  The European Court of Justice (ECJ) has finally issued their ruling on the seminal case of SABAM v. Scarlet, which has been ongoing since 2004.


SABAM is a Belgian rights management group that represents authors, publishers, and composers.  They are responsible for licensing 3rd parties to use the copyrighted content.  They brought this case against Scarlet, a Belgian internet service provider (ISP), to try and get a court order to force Scarlet to monitor their networks and filter out any P2P file sharing.  The Brussels Court of First Instance granted the order.


Scarlet appealed, arguing that the ruling went against both EU privacy law, as well as the e-commerce directive.  The directive banned forcing ISPs to monitor their networks, though it allowed right holders to seek a legal remedy if their intellectual property was misused.  Since it was unclear how to reconcile the two points of the Directive, the Appeals Court referred the case to the ECJ.


The ECJ ruled in favor of Scarlet, that an ISP couldn’t be ordered to install a filtering system to prevent illegal file sharing/downloads.   The ECJ said in their ruling,


“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 be absolutely protected.  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.”


The court took issue with the fact that ISPs would have had to record IP addresses to determine who was file sharing, as IP addresses are considered to be ‘protected personal data’ by the court.  Also, there were concerns over how the filtering system would determine what was lawful vs. unlawful content and whether lawful content might end up being blocked by mistake.  The ECJ felt that this would violate the fundamental right of privacy, as well as the freedom of communication and information.  It would also violate an ISP’s freedom to conduct business.


This is not to say that an ISP is completely off the hook.  They can still be asked to remove specific websites that are in violation of copyright law.  However, the holding in this case is important because it has laid out the boundaries.  Requests cannot be overly broad or vague.  Copyright holders cannot use the court system to go on a ‘fishing expedition’ after all copyright violators.

One comment

  1. Following Scarlet, the ECJ decided SABAM v. Netlog (C-360/10, 16 February 2012). SABAM sought an injunction against Netlog, a social networking platform, requiring Netlog to install a filtration system to monitor its users’ data and prevent them from sharing copyright protected files. The ECJ followed its approach in Scarlet and ruled that an intermediary cannot be forced to filter content stored on its servers by users of its social networking platform. It reiterated that the courts must strike a fair balance between intellectual property rights and data protection rights. But, the ECJ went a step further. The Court was particularly concerned that granting an injunction against Netlog would (1) infringe upon Netlog’s freedom to conduct business, for Netlog would have to install costly software at it’s own expense; (2) infringe upon the fundamental rights of its users, as Netlog users’ files would be monitored and analyzed; and (3) undermine the free flow of information, since software might not be able to distinguish between lawful and unlawful content and therefore might block lawful content.

    Yet, while the ECJ has laid out broad overarching principles, the specific nature of injunctions which can be sought against ISPs remains unclear.

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