Privatised enforcement Series C: The law according to the Advocate General
This article is also available in:
Deutsch: Serie: Privatisierung der Online Strafverfolgung – Teil C
The Advocate General of the European Court of Justice recently published his views with regard to the Scarlet/Sabam case C-70/10 in the European Court of Justice. This is a crucial case with regard to privatised enforcement, as it is the first time that the legality of this approach has been tested. The case came as a result of an attempt by the Belgian collecting society Sabam to require the small Belgian ISP Scarlet to install a filtering system to monitor all peer to peer traffic on its network and block files which Sabam ruled to be unauthorised. As Scarlet was a small, struggling ISP, Sabam hoped that they would comply to avoid high court costs.
Since the start of the case, however, things have unravelled somewhat for Sabam. Firstly, Scarlet was taken over by the Belgian former incumbent Belgacom, which had the resources and ability to fight the case and, secondly, Sabam was humiliated by an undercover TV "sting" which showed them demanding royalties for artists that do not exist (such as Suzi Wan, a brand of noodles) and demanding royalty payments for use of their non-existent works.
The Advocate General described the case as being about (paragraph 54) "delegating the legal and economic responsibility of the fight against illegal downloading to Internet access providers." Sabam's action in bringing the case has been very valuable to digital rights. If they had not brought this case, the European Commission would have been vigorously pushing in favour of exactly such measures, claiming that this approach was legal without immediate fear of contradiction.
For example, in the recent Communication on the implementation of the IPR Enforcement Directive, the Commission argued that such injunctions might be applied, without contradicting any relevant EU law or human rights law. This is also the advice that it gave to the Court. Indeed, the Commission had already run a "dialogue on illegal up- and downloading" with the industry and the content industry with the aim of achieving "voluntary" breaches of the right to privacy and the right to communication that are at stake in the Scarlet/Sabam case, albeit without success.
The view of the Advocate General is that the filtering and blocking demanded by Sabam would constitute an infringement of the fundamental rights to privacy and communication. As such, the requirements imposed by the Charter on Fundamental Rights and Convention of Human Rights in such cases would have to be met. In particular, the Advocate General explains that restrictions must be based on law, the law must pre-date the restriction and the law must be necessary, proportionate and effective. Interestingly (paragraph 113), he also says that Article 52.1 of the Charter creates an implicit obligation for the law to be properly legitimated by a legislative process.
In paragraph 52 of the Opinion, the Advocate General explains that, according to the Charter on Fundamental Rights, the proportionality of a restriction of fundamental rights needs to be defined both by the legislator, when formulating the law on which the restriction is based and by the judge imposing the restriction. Not only does this contradict the Commission's input on in this particular case, it also places huge doubts over a wide range of Commission initiatives. For example, in recital 13 of the Child Exploitation Directive, the Commission bizarrely suggests "stimulating" internet providers to undertake blocking and filtering "voluntarily," circumventing the law, the legislator and the judge.
It remains to be seen what lessons the European Commission will take from this ruling in its demands for more extra-judicial policing from Internet intermediaries. In particular, will the Commission stop funding projects, such as CIRCAMP, its entire raison d'etre being in fundamental contradiction with this Opinion?
Advocate General's Opinion (only in French, 14.04.2011)
Court of Justice Press Release (14.04.2011)
The Suzi Wan playlist
EU in "secret talks" to stop illegal downloads (28.01.2011)
(Contribution by Joe McNamee - EDRi)