Clarification of ISP responsibility for Internet File Sharing
The ECJ has, in a judgment released today (Scarlet Extended SA (“Scarlet”) v Societe belge des auteurs, compositeurs et editeurs (“SABAM”), Case C-70/10), indicated that an order requiring a Belgian internet service provider to filter certain peer to peer files is not permissible under EU law.
The cour d’appel de Bruxelles referred questions to the ECJ following an appeal from a decision of the Tribunel de premiere instance in which Scarlet was ordered to implement filtering technology to prevent unlawful file sharing on its network. The question referred to the ECJ was, in particular, relevant to the interpretation of the Directive 2000/31/EC (the “E-Commerce Directive”), Directive 2001/29/EC (“the InfoSoc Directive) and Directive 2004/48/EC (“the Enforcement Directive”) and whether the provisions of these Directives permit Member States to authorise national courts to “issue injunctions against intermediaries whose services are used by a third party to infringe a copyright or related right”.
Both the InfoSoc Directive and the Enforcement Directive provide that intellectual property rights holders may apply for an injunction against intermediaries such as ISPs whose services are being used by a third party to infringe their rights. The ECJ held that it was a natural corollary of this that national courts could order ISPs to prevent future infringement. However, the Court held that any implementation of the InfoSoc Directive and Enforcement Directive should not affect the provisions of the E-Commerce Directive and more particularly the provisions of that Directive that relate to the “mere-conduit”, “caching” and “hosting” defences which can be relied on by Internet Service Providers and furthermore, the provisions of Article 15 which state that no general internet network monitoring obligations can be imposed on ISPs.
The filtering system which was proposed by SABAM would oblige Scarlet to identify files relating to peer to peer traffic and whether those files contain copyright materials which have been unlawfully shared and, finally, oblige it to block such files. In the above instance the Court held that any such order imposed against an ISP by a national court could not be sanctioned by reason of the obligations under the aforementioned Directives.
The Court said that any national measures to protect copyright must “strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures” and in the present case, the orders sought by SABAM did not satisfy this requirement.
This case will, no doubt, be of particular interest to Irish internet service providers and rights holders alike, who are awaiting the outcome of the Irish Government’s review of copyright law. The decision is also of interest in light of the High Court decision last year in EMI v UPC where Justice Charlton held that the Court did not have authority under Irish law to order a form of injunction against ISP, UPC requiring it to block certain peer to peer file sharing websites on its network.
