Scarlet extended case: the European Court of Justice’s clarification will foster innovation and growth

Brussels,  24 November 2011- The European Internet Services Providers Association (EuroISPA) welcomes the Court of Justice’s ruling that network providers cannot be required to engage in large scale filtering of all users’ communications.

November 2011. EuroISPA and its members welcome the Court of Justice’s clarification in the Scarlet extended case that existing EU law preclude network providers from implementing systems for large scale filtering and blocking of users’ electronic communications. This ruling guarantees the protection under EU law  of fundamental rights and the freedom  of a network provider to conduct  its business. Intellectual property rights should be respected but are  not inviolable, and disproportionate technical enforcement that infringes on the rights of others is contrary to EU law.

The court ruled that requiring Internet Service Providers to conduct general filtering of Internet traffic to prevent copyright infringement is incompatible with the Electronic Commerce Directive and with fundamental rights.  Requiring an ISP to install  such a complicated, costly computer system at its own expense is a serious infringement of the freedom to conduct business. What is more, such systematic analysis of all  content passing through the network undermines both the customers’ right  to protection of their personal data and their right to receive and impart information.

The ruling from the Court of Justice of the EU will have serious implications for content blocking systems imposed on ISPs in other Member States, especially where these are also maintained at the ISP’s expense.

“The Internet industry  plays  a  crucial  part in connecting  European citizens  and  businesses  to  information,  news, entertainment, social media, cultural content and other public interest content. This ruling is therefore of fundamental importance for the future of the Internet and the development of a strong Digital Single Market,” said Malcolm Hutty, President of EuroISPA

“Considering the major contribution that the Internet  industry can make to the economic recovery, it was indeed not the time to put  the  innovation  of the Internet  at risk, and it is of fundamental importance for the future of the Internet that the principles reaffirmed in the ruling are respected”, he continued.

Background

By a judgment on 29 June 2007, the Belgian ISP Scarlet was ordered to install a filtering system to monitor all peer-to-peer traffic on its network and  to  block  the exchange of  files which were included in the repertoire of collecting society SABAM. Scarlet appealed against that judgment to the  Court of Appeal of Brussels, which must  now  decide whether to uphold the measure adopted against Scarlet. In that context, the Court sought a ruling from the Court of Justice on whether EU law permits national courts to order ISPs to install a system for filtering and blocking electronic communications.