Scarlet, SABAM and the proportionality or otherwise of website blocking #DEAPPG

Some of you will have been following the progress of the Scarlet/Sabam case that is currently being dealt with by the European Court of Justice (ECJ). Scarlet, a Belgian ISP (now owned by Belgacom but a small independent at the time the case was started in 2007) was ordered by a national court to implement technical measures to block all P2P traffic that infringes rights held by the Belgian Society of Authors, Composers and Publishers (SABAM).

The court’s decision was subsequently referred to the ECJ who has to clarify whether the requirement to implement traffic-filtering mechanisms is consistent with EU legislation and whether a proportionality test has to be applied if this is the case.

Following upon the submission of written evidence to the court, the ECJ held a hearing on Thursday 13 January that included representations from the European Commission and Member States. The judge will deliver his opinion on 14th April

The outcome of this case will potentially have great bearing on a number of regulatory themes currently trending in the UK – not least being the Digital Economy Act and the recent discussions on porn blocking.

We do need to note that the report was produced by EuroISPA and should therefore be careful in reading into it any assessment as to the likely outcome of the hearing. It looks ok to me 🙂 .

In a nutshell ISPs and a number of EU states considered the technical blocking order to be disproportionate. The report also suggests that in the light of strong arguments to the contrary the judge did not appear to be convinced in respect of filtering measures believed by SABAM to be technically possible.

The report:

Member States spoke in favour of Scarlet
It was very interesting to see that the Member States attending, i.e. Belgium, Czech Republic, Italy and Poland were strongly supportive of Scarlet’s position, thereby rejecting the observations of the European Commission, which they found dangerous. Their main arguments focused on:

  • The requested massive filtering measure is in contradiction with the Art.15 of the e-Commerce Directive
  • Doubt on the efficiency of such measure
  • The requested measure is not proportionate because it would apply to all customers, in abstracto and as a preventive measure, at the costs of the ISPs and without limitation in time
  • Concerns about e-privacy rights
  • ISP should not decide on the illegal character of a communication
  • Cost of filtering should not be borne by ISPs in order to avoid that all end users pay for some infringers (disproportionate)
  • Interests of rightsholders, ISPs and consumers should be balanced

SABAM and the Commission: filtering is not against mere conduit principle in the E-Commerce Directive
SABAM and the European Commission, on the other hand, held the view that filtering systems did not require any active involvement by the Internet Access Providers and should not be considered a general obligation to monitor information. In addition, SABAM argued that the filter applied only to peer-to-peer traffic, and only in relation to its repertoire, and should therefore not be considered as a general monitoring obligation.

Mrs Cécile Vrignon (DG Legal Service), representing the Commission, appeared very confused during her pleading. She first argued that there were nothing in the EU legislation that prevented Member States to allow national judges to impose filtering obligations on Internet access providers, as long as such an injunction balances the various rights at stake. “This is a complex area that evolves quickly both technologically and legally and we should be reading the texts according to the context today, not when the texts were written”, she said. In addition, and in response to the fundamental rights arguments, the Commission reminded that the rights of property should also be considered. Mrs. Vrignon also pointed out that the issue was politically sensitive, and referred to the debate around the ‘internet freedom’ provisions in the new EU telecoms package, and ‘three-strikes’ schemes in countries such as France. In a almost desperate manner, the Commission concluded with the following question: “what is more preferable: blocking anonymous exchanges between consumers, or starting heavy penal procedures against them?“.

Advocate General questioned Commission’s position
Advocate-General Pedro Cruz Villalón asked the Commission to take position on the second part of the preliminary question, i.e. on the proportionality of the filtering measure as requested by SABAM. He indeed asked the Commission whether it believed that imposing a filtering system on all customers, in abstracto and as a preventive measure, at the costs of the ISPs and without limitation in time, was proportionate. In her reply, Mrs Vrignon doubted that the conditions for such measure, as requested by SABAM were proportional. The Commission, therefore, stressed the necessity to apply the proportionality test.

Juge Rapporteur put SABAM in a difficult position
Juge Rapporteur, Jiří Malenovský, was particularly interested about the technical feasibility of filtering measures and was surprised that Sabam did not address this in its observations and pleading. Consequently, he requested Sabam to give more objective details on filtering measures it believed technically implementable. Indeed, the Juge Rapporteur claimed that Member States and ISPs representatives gave very concrete and worrying arguments to explain why filtering were inefficient, disproportionate and too costly. According to the Juge Rapporteur, SABAM’s reply was not really convincing.

Advocate General Pedro Cruz Villalón is expected to deliver his opinion on 14th April.

I am indebted to EuroISPA for this report – the body of this post has been taken verbatim from that provided to me by the trade association.

Published by Trefor Davies

Liver of life, father of four, CTO of trefor.net, writer, poet, philosopherontap.com

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