In Scarlet Extended SA v Société Belge des Auteurs Compositeurs et Editeurs C-70/10, the Advocate General (AG) of the Court of Justice of the European Union (CJEU) has given his opinion on whether it is lawful for a national court to impose an order on an internet service provider (ISP) to make in impossible for its customers to send or receive, by means of peer-to-peer software, particular music files.
The action was initially brought under Belgian law by the Société Belge des Auteurs Compositeurs et Editeurs (SABAM) against the Belgian ISP, Scarlet Extended SA, in connection with alleged infringement of copyright in musical works in its collection, as a result of illegal file-sharing occurring via Scarlet’s services. SABAM applied to the Belgian court for a declaration of infringement and for an order requiring Scarlet to block such file-sharing by making it impossible for Scarlet’s customers to share files using peer-to-peer software without the permission of the rights holders.
Under Belgian national law, an order to cease infringement can be made against an intermediary whose services are used to facilitate infringement. Accordingly, once the Belgian court had found that infringement had taken place, it ordered Scarlet to cease infringing by making it impossible for its customers to send or receive, by means of peer-to-peer software, music files within SABAM’s collection. It also imposed a penalty payment of €2,500 per day, payable to SABAM, if the system was not set up and working within six months.
The matter was appealed to the Brussels Court of Appeal, which asked the CJEU whether, under EU law, in particular under the Charter of Fundamental rights, a national court was permitted to order an ISP to install filtering and blocking systems to protect intellectual property rights.
The AG first considered the characteristics of the proposed system that Scarlett would be ordered to install. It would require all data communications passing via Scarlet’s network to be filtered in order to detect copyright infringement. Communications that did involve infringement would then be blocked.
The result of this, according to the AG, was that the order would have a lasting effect for an unspecified number of legal and natural persons regardless of their state, residence and whether they had a contract with Scarlet or not. He considered the order to provide a general obligation that was intended to be extended in the longer term and on a permanent basis to all ISPs.
In view of this, the AG considered that the installation of such a system would be a restriction on a number of rights protected by the Charter of Fundamental Rights, including the right to privacy of communications and the freedom to receive and impart information.
The AG noted that the exercise of rights and freedoms in the Charter could be restricted if restricted in accordance with national law. However this would mean that a restriction on the rights and freedoms of internet users, such as was at issue in this case, would only be permissible if it were adopted on a national legal basis (i.e. by national legislation) and that it was accessible, clear and predictable.
The AG proposed that the CJEU should answer the question as follows:
EU law precludes a national court from making an order that requires an ISP to install, in abstracto, and as a preventative measure, entirely at the expense of the ISP and for an unlimited period, a system for filtering all electronic communications passing via its network (in particular, those involving the use of peer-to-peer software) in order to identify the sharing of electronic files containing a musical, cinematographic or audiovisual work in respect of which a third party claims rights, and subsequently to block the transfer of such files, either at the point the transaction is requested or at the point that it is carried out.
If the CJEU follow this opinion it is likely that national legislation would be required in order to compel ISPs to install systems that automatically detect and prevent copyright infringement.