With the recent decision C-70/2010, the European Court of Justice (ECJ) stated that a national court’s order imposing to an internet service provider (ISP) to install a general filtering system with the aim of preventing illegal downloads of files is against EU law.
Such an interim order was granted, upon request of the Belgian collection society Sabam, by the Belgian Court versus the ISP Scarlet Extended SA (Scarlet), whose users, by means of peer-to-peer networks, downloaded without authorisation music works of Sabam’s catalogue.
More specifically, the Court ordered Scarlet to monitor on a permanent basis all its customers’ traffic and block any unauthorised peer-to-peer transfer, installing a filtering system at its own cost.
Scarlet appealed the interim order for violation of the EU law. The Court of Appeal then referred the matter to the ECJ to clarify whether an interim order issued by a national court against an ISP imposing, on a general basis and as a preventive measures, to install, for an unlimited period, a system for filtering and identifying electronic communications and blocking illegal file downloads- would comply with EU law.
The ECJ, while confirming that national courts may address interim orders to ISP whose services are used by a third party to infringe IP rights (IPR), specified that, in compliance with Directive 2000/31/CE, such measures must not impose ISP to carry out a general and unlimited monitoring of the information transmitted on its network as it would result in a disproportionate and costly measure.
The ECJ also stated that a similar order would seriously restrict both ISP’s right to carry out its business and ISP’s customers’ right to respect for the privacy of communications and the right to protection of personal data, rights that are all safeguarded by the Charter of Fundamental Rights of the EU.
Based on the above observations, the ECJ – in application of (i) Articles 12 to 15 of the E-Commerce Directive 2000/31/EC; (ii) Articles 8 (1) and (2) of the Copyright Directive 2001/29/EC; (ii) Articles 2(3), 3(1), 3(2) and 11 of the IP Enforcement Directive 2004/48/EC; (iv) the Data Protection Directive 95/46/EC; and (v) the E-Privacy Directive 2002/58/EC – declared that EU law precludes a national court from making a provisional order requiring an ISP to install, in respect to all its customers, at the expense of the ISP and for an unlimited period, a system for filtering all electronic communications passing through its services in order to identify the sharing of files violating IPR of third party and block the illegal circulation of such files.
The prohibition of a general monitoring duty on ISP established by the ECJ, does not mean that IPR’s owners cannot obtain preventive measures against ISP to restrain on-line piracy, but merely that such measures cannot go so far as to require ISP to actively monitor all the data of each of its customers. Therefore, a clear and precise provisional order requiring an ISP to filter a well determined traffic of data, for instance by implementing a technical solution already used for other purposes, should be still allowed, as far as such an order is clear, precise, technically feasible and affordable.

Barbara Sartori
Luca Ferrari