On 28 January 2010 the Belgian Court of Appeal referred two questions to the ECJ in the case of SABAM v Tiscali. The decision at first instance, which was widely reported in 2007, concerned 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 its users to use "peer-to-peer" ("P2P") software to transmit infringing files containing musical compositions. 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, the Belgian Court of Appeal has referred two questions to the ECJ in an attempt to ascertain whether a national court is entitled to impose an obligation on an ISP to filter its internet traffic, and, if so, to what extent the national court has to consider the proportionality of the measure.

The decision is likely to have significant implications in the UK, where Parliament is currently considering plans to require ISPs to take steps to prevent P2P file-sharing.

For the full text of the questions referred (translated from French) and our comments on the referral please click here (http://www.law-now.com/law-now/2010/tiscalifeb2010.htm)

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The original publication date for this article was 15/02/2010.