CJEU Decision Finds That Requiring ISPs To Filter Content Is Illegal

Author:Mr Chris Watson, Tom Scourfield, Scott Fairbairn and Jeremy Morton
Profession:CMS Cameron McKenna LLP

In the long awaited judgment in the case of Scarlet Extended SA v SABAM, the Court of Justice of the European Union delivered a landmark decision preventing an onerous obligation being imposed by injunction on an Internet Service Provider (ISP) requiring it to prevent copyright infringements online. It ruled that the proposed injunction, which would require an ISP to install an expensive system for filtering, applied indiscriminately to all users as a preventative measure, and capable of identifying files which infringe copyright, was illegal and contrary to applicable fundamental rights, notably proportionality. To view the article in full, please see below: Full Article The case of Sabam v Tiscali in the Belgian courts in 2007 addressed whether the court should grant injunctive relief to SABAM (the Belgian Society of Authors, Composers, and Publishers) against the Internet Service Provider ("ISP"), Tiscali, imposing an obligation on the ISP to stop infringements of SABAM's intellectual property by making it impossible for Tiscali's users to use "peer-to-peer" ("P2P") software to transmit infringing files containing musical compositions. After hearing expert evidence in support of the application of such a filter, the Belgian Court granted an injunction ordering Tiscali to install filtering software to prevent the ISP's customers from sending electronic files containing musical works that were part of the SABAM repertoire. Tiscali subsequently appealed the decision and, prior to delivering a judgment, in January 2010 the Belgian Court of Appeal referred two questions to the Court of Justice at the European Union ("CJEU") to ascertain whether a national court was entitled to impose an obligation on an ISP to filter its internet traffic, and, if so, to what extent the national court had to consider the proportionality of the measure. The questions referred were: '(1) Do Directives 2001/29 and 2004/48, in conjunction with Directives 95/46, 2000/31 and 2002/58, construed in particular in the light of Articles 8 and 10 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, permit Member States to authorise a national court, before which substantive proceedings have been brought and on the basis merely of a statutory provision stating that: 'They [the national courts] may also issue an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right', to order an...

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