On 24 November 2011 the European Court of Justice ruled that internet service providers (ISPs) have no obligation to install a filtering system to combat the illegal exchange of peer-to-peer files. Such an obligation would be in conflict with the prohibition on imposing a general surveillance obligation on such a service provider, as well as with the requirement to strike a proper balance between intellectual property rights on the one hand and the freedom to conduct business, the right to protection of personal data and the freedom to receive and issue information on the other.
The ruling is the result of a question submitted to a Belgian court in the legal battle between the Belgian rights management organisation SABAM and an ISP called Scarlet: is the court permitted to order an ISP to implement a general, preventive system, unlimited in time and paid solely by the ISP for filtering electronic communication for the purpose of determining the illegal download of files? The answer was no.
In the ruling, the ECJ first discusses the various applicable regulations, and reads and explains them in connection with the protection of fundamental rights (privacy and the exchange of information). All this precludes the court from ordering the implementation of a filtering system for all electronic communication via the ISP services, in particular peer-to-peer use, that is applied without distinction to and works preventively vis-à-vis all clients of the ISP, which system is paid for solely by the ISP and has no time limitations.
Consequently, it shall also be difficult in the Netherlands for rights management organisations to successfully demand a general filter order from ISPs.
Joost Bindels