ECJ advisor says web traffic filtering breaches EU charter

By | Published on Monday 18 April 2011


An interesting adjunct to a Belgian copyright case has backed up, to an extent, constant claims by internet service providers that they can’t introduce filters on their systems that monitor for and block copyright infringing content because of European privacy laws. ISPs in the UK have long cited European legislation as justification as to why they can’t more proactively police copyright infringement.

The Belgian case, originally in court back in 2007, involved an ISP called Scarlet, which was ordered by the country’s courts to filter out copyright infringing content being shared by its customers, after legal action by Belgium’s publishing rights collecting society Sabam.

Scarlet appealed the ruling, claiming that introducing the kind of filtering system described by the Belgian court would involve carrying out “invisible and illegal” checks on net users’ activity online. And now an advisor to the European Court Of Justice has agreed, saying in a submission that a system like that ordered by Belgian judges would breach privacy of communication and data protection rights under the EU’s Charter Of Fundamental Rights.

Or, in the words of ECJ Advocate General Pedro Cruz Villalón: “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”.

Villalón did add that the Charter does allow for the rights and freedoms of European internet users to be restricted by national law, but said that such restrictions must be ingrained in the legal systems of individual member states, and should be “accessible, clear and predictable”. That was not the case in the Scarlet judgement, he concluded.

That get-out means that Villalón’s interpretation of European law, if accepted by the ECJ judges, wouldn’t necessarily set a precedent that hinders the introduction of the three-strike systems being introduced in countries like the UK and France.

For starters, in those systems it is the content owners and not the ISPs who monitor internet traffic, but more importantly the British and French three-strike systems are set out in new copyright laws, and legislators would argue that, even if said laws do restrict European fundamental rights, they fulfil the Charter’s criteria of being “accessible, clear and predictable”.

Though BT and TalkTalk, which have forced the copyright section of the UK’s Digital Economy Act into judicial review, would probably argue that, in being rushed through parliament last Spring to meet the General Election deadline, the British three-strikes law fails to meet these requirements.

It will be interesting to see if they raise Villalón’s remarks and any subsequent ECJ ruling as the DEA judicial review goes through the motions.