EU Court Advisor, French Lawmakers Spurn Internet Blocking for Copyright Protection

A Belgian court order forcing ISPs to use filtering or blocking to prevent unauthorized downloads violates in principle fundamental rights, European Court of Justice Advocate General (AG) Pedro Cruz Villalon said Thursday in an advisory opinion. Restrictions on Internet users’ rights are permissible only under laws that are accessible, clear and predictable, he said. The opinion isn’t binding, but the ECJ usually follows its advisors’ recommendations. Meanwhile, a French parliamentary panel recommended that the government avoid blocking as much as possible because of its negative side effects.

The Belgian case involves ISP Scarlet Extended and music royalty collecting society Sabam. Under Belgian law, courts can issue orders for intellectual property infringements to cease, including against intermediaries whose services are used to carry out the violations, the ECJ said in a news release. The opinion was available only in French at our deadline.

Sabam asked for a ruling that its copyright was being infringed by unauthorized file-swapping over peer-to-peer networks, the ECJ said. It also wanted an order requiring the ISP to block or filter file-sharing of protected content. The court found that infringements had occurred, and Scarlet was ordered to block the P2P file-sharing within six months or face daily penalties. It appealed to the Court of Appeal in Brussels. The court asked the ECJ whether EU law, particularly the rights guaranteed by the Charter of Fundamental Rights, permit a national court to order ISPs to install filtering and blocking systems.

The filtering/blocking regime must be able to bar any file which is thought to breach one of Sabam’s copyrights from being sent by a Scarlet subscriber to another Internet user, whether or not a subscriber and no matter where the person lives, the ECJ said. It must also prevent Scarlet customers from receiving files from other users, Villalon said. Moreover, the court order would be a preventive measure, meaning that no finding of an actual or imminent infringement would be necessary, he said.

The court made Scarlet responsible for the cost of installing and running the system, the ECJ said. That puts the legal and economic responsibility for fighting illegal downloading of pirated work mostly on ISPs, it said. In view of all those characteristics, filtering and blocking restrict privacy, data protection and freedom of expression rights safeguarded by the charter, it said.

The AG’s view is that narrowing Internet users’ freedoms in this case is permissible only if it’s done under a law that is accessible, clear and predictable, the ECJ said. Making ISPs, at their own expense, install filtering/blocking systems isn’t a clear and predictable law and is a special and new obligation, it said. Neither the filtering system, intended to be universal and permanent, nor the blocking mechanism, which can be activated without giving those affected the right to challenge it, adequately protect users’ rights, it said.

There are times when authorities can order measures that interfere with fundamental rights, legal wiretaps being one of them, said Hogan Lovells telecom lawyer Winston Maxwell. To be valid, the interference must be expressly provided for by law, done to achieve a legitimate and important objective and be “necessary” to achieve that goal, he said by email. The proportionality test is usually the trickiest, because it requires careful balancing of interests and requires that limits on fundamental rights “be crafted with surgical precision,” he said. In this case, the AG said the ECJ doesn’t need to get to the proportionality question because the Belgian judge ordered broad-reaching filtering without a national law authorizing that kind of activity, Maxwell said. The law allows a court to order specific measures to stop online infringement, but the AG said that provision can’t be stretched to include preventive filtering that affects all Internet users, he said. The “key takeaway” from the opinion is that “imposition of a general filtering obligation requires first and foremost a law properly debated and adopted in parliament,” Maxwell said.

The opinion establishes the core principles that blocking/filtering infringe fundamental rights, and that restrictions on those rights can’t simply “be abused by outsourcing breaches to the private sector, as in this case,” European Digital Rights Advocacy Coordinator Joe McNamee said by email. EDRI hadn’t seen the full opinion yet, but it appears to “strongly vindicate” its campaign against privatization of intellectual property enforcement and the indiscriminate infringement of citizens’ rights online, he said. The opinion should compel the European Commission to back away from its strategy to transform Internet companies into copyright police, a plan that’s being pursued through the Anti-Counterfeiting Trade Agreement and the upcoming revision of the intellectual property rights enforcement directive, said Jerémie Zimmermann, spokesman for citizen advocacy group La Quadrature du Net.

Governments should avoid forcing telecom operators to block e-communications as much as possible, given the negative impact it has on free speech and its potential to lead to cryptography development and over-blocking, lawmakers said in a net neutrality report to the French National Assembly’s Economic Affairs Committee this week. The cross-party study, a nonofficial translation of which was posted by La Quadrature du Net, recommended that France’s Parliament question the justification for blocking measures, despite their apparent legitimacy, and set up a judicial system for challenging compulsory blocks to protect freedom of speech.

Other recommendations included: (1) Coming up with a legal definition of net neutrality and making its promotion a goal for regulatory bodies. (2) Protecting consumer freedom of choice by ensuring transparency about Internet access by reserving the “Internet” label only for neutral access offers and creating an Internet quality observatory. (3) In cases where competition doesn’t allow consumers to opt for neutral Internet access at a reasonable price, requiring access providers to guarantee Internet quality. (4) Considering setting a “data call termination” charge to cover networks’ variable costs to allow access providers to offer quality access.

The “encouraging” report must be a template for the EC’s upcoming net neutrality statement, Zimmermann said. It seems to be a “counterpoint” to French President Nicolas Sarkozy’s “repressive Internet-related politics,” Zimmerman said, but must now be followed with action.