The European Court of Justice has set some limits for the sorts of measures that ISPs can be compelled to implement to discourage copyright breach by their networks. Back in 2004 the Belgian rightsholder representative SABAM sought a court order requiring an ISP, Scarlet, to install devices on its network that inspected the content of peer-to-peer communications and blocked any that appeared to contain copyright music. The question of whether this order was compliant with European law worked its way up to the ECJ, which has now released its judgment.
The Belgian court had described the required measure as “a system for filtering all electronic communications passing via [the ISP’s] services, in particular those involving the use of peer-to-peer software; which applies indiscriminately to all its customers;as a preventive measure; exclusively at its expense; and for an unlimited period”.
The ECJ confirms that under the IPR Enforcement Directive (2004/48/EC), national courts can make injunctions to prevent copyright breaches. However the scope of those injunctions is limited by three factors:
- It is not permitted to impose on an ISP a general duty to monitor traffic on its network (Article 15 of the Electronic Commerce Directive 2000/31/EC);
- The impact of the measure on the ISP’s freedom to conduct its business must be proportionate and not excessively costly (Article 3 of the IPR Enforcement Directive 2004/48/EC);
- The impact of the measure on users’ right to privacy and their right to impart and receive information must be proportionate (Human Rights Convention).
It concludes that the system described by the Belgian court would fail all three of these tests in that it does require the ISP to carry out general monitoring (para 40), that the cost to the ISP (and therefore the interference with its business) was not proportionate to the benefits achieved (para 48), that the interference with users’ right to privacy did not achieve a fair balance (para 51), nor did the interference with their right to impart and receive information. Interestingly the court recognised that a pure technical system may not make accurate decisions on whether a particular transmission breaches copyright because that “depends on the application of statutory exceptions to copyright which vary from one Member State to another” (para 52); thus it was possible that the system would block transmissions that were lawful.
Although this particular order was found to be unlawful, the court’s reasoning seems to leave scope for more limited, less intrusive and less costly systems to be found to be lawful. For example in the recent UK case ordering BT to use URL blocking to prevent access to a copyright infringing website the court clearly considered it significant that BT already had a URL blocking system in place and that the additional cost of the order would be a few thousand pounds.