Netherlands: Opinion Of The ECJ Advocate General On Injunctions Against Isps To Filter P2P Traffic

The Advocate General Cruz Villalón delivered his Opinion on 14 April 2011, in case C-70/10 (Scarlet/Sabam).

The Opinion of AG Gruz Villalón

Scarlet, an Internet Service Provider ("ISP"), was ordered by a Belgian court to make it impossible for its customers to share files that infringe rights held by SABAM, the Belgian Society of Authors, Composers and Publishers. Following questions of the Brussels Court of Appeal, the European Court of Justice ("ECJ") will answer the question whether or not EU law would allow national courts to order an ISP to filter and block electronic communications, with a penalty for failure to comply.

The Advocate General proposed that the ECJ should declare that EU law precludes a national court from granting a general order, on the basis of the Belgian statutory provision, compelling an ISP to install such a filtering system and to then block the pirated music files.

This should not come as a surprise because of the absolute nature of the injunction in question. The Advocate General considered that the court order would apply in abstracto and as a permanent and preventive measure. This means that it would not be necessary to first prove actual copyright infringement or even that an imminent infringement was likely. Moreover, such an order makes the ISP responsible for the cost of installing the filtering system and imposes an obligation with regard to the result to be achieved. On these grounds the injunction appears to be too broad.

In this respect, the Advocate General considered that the injunction in question is a restriction on privacy rights, protected under the EU Charter of Fundamental Rights. However, he pointed out that this Charter accepts that these rights may be restricted, on the condition that it is in accordance with the law. According to the Advocate General, it cannot be held that Belgian law provides such a legal basis.

Practical implications

At the moment, it is still very arguable that a national court has the power to impose more specific obligations on intermediaries. Hopefully the ECJ will give clarity about what obligations may or may not be imposed on ISPs to prevent copyright infringement.

The outcome of this case may well influence recent regulatory plans in the Netherlands. Currently, combating unauthorised downloading and uploading is a hot topic. On Monday, 11 April 2011, the Dutch State Secretary for Public Safety and Justice, Mr Fred Teeven, introduced a mission statement to modernise the Dutch copyright regime. Teeven proposes, among other things, to ban downloading from evidently illegal sources and emphasises that it is important to focus on the role and responsibility of intermediaries, such as ISP's.

We are more than happy to discuss the possible impact of this Opinion with you.

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