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European Court: Internet providers can't be forced to monitor users

The European Court of Justice overturned a Belgian court's injunction in what experts say is a victory for Internet providers and users over proponents of tighter copyright controls online.

By Correspondent / November 29, 2011



Dublin, Ireland

The European Court of Justice (ECJ) on Thursday overturned a Belgian court's ruling requiring Internet service providers (ISPs) to snoop on users' private data, in a major victory for the ISPs and digital rights advocates over content owners worried about online copyright infringement. 

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The ECJ, the European Union's highest court, struck down an injunction by the Belgian national courts that required Benelux telecom provider Scarlet to monitor copyright infringement among its users.  SABAM, the Belgian association of authors, composers, and publishers, sought the injunction to protect the royalties of its members.

The high court ruled that the injunction failed to comply with an EU ban on "imposing a general monitoring obligation" on ISPs and with the requirement to strike a fair balance between the right to intellectual property, freedom to conduct business and, in a key decision, "the right to protection of personal data and the freedom to receive or impart information."

The ruling will boost legal protections for both ISPs and individual users across Europe, since as an EU court, the ECJ's ruling has consequences for laws across all 27 EU member states. 

"In general terms with ECJ judgments, the way they are interpreted by national courts is always a question," says Richard Dissman, an expert in contentious intellectual property issues at Munich law firm Bird and Bird.

Mr. Dissman says the ECJ ruling is not the end of the matter, but that it does form a cornerstone for future dealings. "My experience with other ECJ judgments is the rights owners will find a way to live with it. They will certainly lobby for new legislation, arguing it's a pirates' charter, but they will also find ways to work with this regime."

Victor Vazquez-Lopez, senior legal counsel with the World Intellectual Property Organization (WIPO), says the ECJ ruling underscores current legal procedure.

"There is a very basic principle which derives from our 1996 internet treaties […] that Internet intermediaries [such as ISPs and websites that host user-uploaded content] are not directly liable, but that does not mean they do not have an indirect liability and several countries have legislated on that basis, such as the United States' Digital Millennium Copyright Act in 1998 and the EU's [2000] Electronic Commerce Directive."

'A confirmation of longstanding principles'

SABAM issued a press statement saying it "takes note of this decision and shall propose alternative measures in order to protect the authors and their works."

Both ISPs and digital rights advocates welcomed the judgment.

ISPs had complained that monitoring their networks for copyright infringement would create an onerous regulatory regime that could harm Europe's economy. 

"Considering the major contribution that the internet industry can make to the economic recovery, it was indeed not the time to put the innovation of the internet at risk, and it is of fundamental importance for the future of the internet that the principles reaffirmed in the ruling are respected,” said Malcolm Hutty, president of the European Internet Service Providers' Association (EuroISPA).

Smaller ISPs in particular were concerned that they would suffer a competitive disadvantage against major telecoms companies, as they would be unable to afford the necessary monitoring.

Digital rights groups, meanwhile, see the ruling as a recognition of common sense.

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