What should be the role of internet intermediaries in fighting illegal content? The French courts1, the French parliament2, the European Commission3, the Council of the European Union4 and the OECD5 are struggling with this tricky question. Protecting intellectual property rights is just one facet of the debate.

Sabam case: ISPs under a duty to filter?

Cooperation from ISPs to combat infringements is possible on two levels. First, the ISP can provide the name of the subscriber associated with an IP address, thereby helping to reveal the name of the person who may have committed the infringement. (The subscriber is not necessarily the person who committed the infringement but the subscriber is a good starting  point to find the actual infringer.) Secondly, the ISP can prevent the offence from occurring in the first place by blocking illegal content at the network level. Spam, viruses and denial of service attacks are frequently blocked in this fashion. Some parental control tools also block access to pornographic content, at the request of the subscriber. Blocking to prevent IP infringement is much more controversial.

In Belgium, the Association of authors, composers and publishers (Sabam) sought an order requiring Scarlet, an ISP which is now a subsidiary of Belgacom, to put a filtering system in place. The filtering system worked on the same basis as those put in place by popular video sharing platforms such as Dailymotion and YouTube, i.e. a system that compares the content with a data base of protected works. If the files match, the system blocks the transmission or directs the Internet user to a web site where the content is available legally. The Belgian lower court requested a report from a technical expert, and then went on to order that Scarlet install these filtering measures. Scarlet appealed, and the Brussels Court of Appeal put a prejudicial question to the European Court of Justice. On 14 April 2011, the Advocate General gave his opinion to the Court. The Court is not bound by the Advocate General's findings but these are often very persuasive. The question put to the Court is whether it is possible for a national court to order a general preventive filtering measure that is not linked to specific infringing content or a specific offence, but instead aims to prevent potential infringement by subscribers of an ISP. This question of preventive filtering is far more complex than that of isolated filtering which serves to block access to predetermined illegal content6.

The analysis was carried out in two stages:

  1. Does the measure constitute a restriction of a fundamental right?
  2. If so, does this measure satisfy the three requirements provided by case law to allow such a restriction?

The Advocate General starts by assessing the impact of the filtering measure on fundamental rights. The Advocate General concludes that the system creates a risk in relation to protecting personal data, because it relies on an analysis of IP addresses of Internet users. According to the Advocate General, an IP address as personal data. The Advocate General also cites freedom of expression as another fundamental right which could be affected by the measure. The Advocate General then considers the conditions on which these fundamental rights may be limited. There are three such conditions: the limitation must be specifically provided for by law; the measure must seek to protect a legitimate interest; and the measure must comply with the principle of proportionality. As a general rule, it is the proportionality test that proves problematic. The proposed measure must be limited to what it strictly necessary to meet the desired objective, and there must be sufficient protections in place to minimise the impact on other fundamental rights.

The Advocate General indicates that he has certain doubts over the proportionality of the proposed Belgian measure, in that it affects all Internet users and not just Internet users suspected of having committed acts of infringement. He is of the opinion however that the Court need not examine the proportionality test because the first test fails. According to the Advocate General, Belgium has not adopted a specific statute allowing preventive filtering of this type. The adoption of a law which has been debated in Parliament is the first guarantee of rights in a democratic society. In Belgium, there is a law authorizing a magistrate to order any measure necessary to put an end to acts of infringement, but according to the Advocate General this law is not sufficiently precise to allow the court to order a preventive and generalized filtering measure, which could potentially impact on all Belgian Internet users. A specific law would be necessary for a measure of this magnitude. As to the second test, which concerns the protection of a legitimate interest, the Advocate General refers to the "Promusicae"7 case, in which it was stated that protection of copyright is also a fundamental right and that pursuing this right is legitimate. This second test is easily satisfied.

The Advocate General's opinion mentions that obligatory filtering measures may be installed legally, but only in certain circumstances, one of which is that a clear legal framework exists. This is exactly in line with the findings of the French members of parliament Corinne Erhel and Laure de La Raudière in their information report on net neutrality, which was presented to the National Assembly on 13 April 20118. In this report, the members of parliament advocate a single legal framework for all obligatory filtering measures, with systematic recourse to the courts: "Unless there are security grounds, Internet Service Providers should only be obliged to block electronic communications at the end of a single procedure allowing a Judge to order that access to content, a service or an application is stopped"9.

According to the parliamentary report, the use of different legal procedures for ISP filtering in France has caused some confusion. Putting a single legal framework in place would ensure that legislative decisions are consistent and would "consolidate" the debates over content blocking10. The report highlights the importance of ISP legislative intervention to establish a balanced framework for ISP filtering. This conclusion echoes the Advocate General's opinion in the "Sabam" case. The parliamentary report also highlights the need to carry out an impact assessment before considering any legislative filtering measures. The authors of the French report emphasize the negative effects of general filters being put in place, such as a large number of users turning to encryption techniques in order to avoid such filters. These effects must be considered in any impact assessment.

BT/Talk Talk: Parliament weighed impact of ISP measures

An impact assessment was carried out prior to the adoption of the Digital Economy Act in the United Kingdom. This English statute places English ISPs under an obligation to collaborate with rights holders in order to combat infringement, in particular by sending warning messages to Internet users suspected of infringement. The relevant provisions of the Act are yet to be fully implemented. Nevertheless, two ISPs – TalkTalk and BT – challenged the legality of this statute before the High Court of Justice on the basis that these provisions did not comply with the principles of proportionality, that they were incompatible with the E-commerce Directive and the Privacy and Electronic Communications Directive, and that they should have been notified to the Commission under the Technical Standards Directive. The court handed down its decision on 20 April 201111, dismissing all of the material claims.

With regard to the key issue of proportionality, the court held that the British Parliament had struck a reasonable balance between the various rights in question (personal data, freedom of expression, authors' rights) on the basis of an impact assessment and that in the absence of manifest error, this balance should not be called into question by the court.

The English court highlighted the complexity of the subject and the difference in points of view, in particular regarding the efficacy of a requirement to send notifications to Internet users and the actual impact of illegal downloading on sales of discs etc. But the court decided that the Parliament had some leeway in terms of the weight it could attach to different points of view, and that the court could not challenge Parliament's assessment of the situation.

TalkTalk and BT announced (on 27 May) that they intend to appeal the decision of the High Court to the Court of Appeal on all but one of the grounds initially put forward to the High Court. The Claimants have decided not to pursue the claims relating to proportionality.