Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM); Belgian Entertainment Association Video ASBL (BEA Video), Belgian Entertainment Association Music ASBL (BEA Music) and Internet Service Provider Association ASBL (ISPA) intervening

December 2011


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.  “Such an injunction does not comply with the prohibition on imposing a general monitoring obligation on such a provider, or with the requirement to strike a fair balance between, on the one hand, the right to intellectual property, and, on the other, the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information” 
Read more on the IPKat here  where Jeremy says “This blogger suspects that SABAM and other agencies will not shrink from seeking injunctive relief which requires filtering until they have first noted how carefully and narrowly the active part of the judgment has been drawn, how many invitations it appears to make in order to accommodate those who seek to modify their enforcement demands, and how the fate of the enforcement action may be contrasted with the approach taken in the British courts in Newzbin 2” 
and the 1709 Blog here

Will it effect the decision of the High Court in London in Newzbin2? Maybe! Advocate General Pedro Cruz Villalón had originally said that the Belgian court’s original injunction did indeed breach the EU’s Charter Of Fundamental Rights saying “The installation of the filtering and blocking system is a restriction on the right to privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter”. But the Belgian order was an onerous order, possibly technically impossible, and difficult and no doubt costly for ISPs to enforce. Where content owners are more involved in monitoring infringing content there is no reason why les onerous orders will not work – as will specific legislation passed by EU member states. In fact Frances Moore from the IFPI, the record labels international trade body put quite a positive spin on things saying “This judgment will help in our ongoing efforts to protect creative content online. It confirms ISPs and other online intermediaries can be required to take measures against both existing and future online infringements and re-states the importance of protecting intellectual property as a fundamental right. In this particular case, the court rejected the content filtering measure presented by the Belgian court as too broad. However, this does not affect the forms of ISP cooperation that IFPI advocates including graduated response and the blocking of rogue websites, which are already being implemented in countries across Europe”.

No Comments

Comments are closed.