The Netlog and Scarlet/Sabam rulings & ACTA – what have we learned?

By EDRi · February 29, 2012

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Deutsch: [ACTA & die Entscheidungen zu Netlog und Scarlet/Sabam – was wir daraus gelernt haben |]

There has been a great degree of noise around the recent Netlog/Sabam ruling
from the European Court of Justice and what this may prove or disprove about
ACTA. This article will seek to separate fact from fiction.

In both cases, Sabam had asked for an injunction requiring suspicionless and
open-ended filtering of citizens’ use of Internet services (web hosting for
Netlog and peer-to-peer networks for Scarlet), paid for by the Internet
service provider. In the Netlog case, the Belgian courts had wanted to
oppose the injunction while they wanted to support the injunction in the
Scarlet case.

In both cases, the rulings of the Court were based on the Charter of
Fundamental Rights of the EU. Pro-ACTA lobbyists and politicians argue that
the Charter can therefore be relied upon to prevent ACTA from being
implemented in ways that would breach the rights of citizens. In reality,
unfortunately, the Court rulings prove just how dangerous ACTA actually is.

Under Article 27 of ACTA, states party to the agreement are required by law
to encourage enforcement cooperation by private companies. If either Scarlet
or Netlog had implemented the measures as a “voluntary” act of cooperation
with Sabam, neither of the cases would have ever been sent to the Court – or
at least not for several years. Under ACTA, therefore, measures which were
considered by the European Court of Justice to be in breach of privacy,
freedom of communications and freedom to do business would have been
arbitrarily and illegally implemented outside the rule of law.

The European Commission frequently seeks to reassure governments and
citizens that ACTA only concerns large-scale infringements and ordinary
citizens (however that may be defined) would have nothing to worry about.
However, the European Commission itself, even before ACTA was finalised,
sought to introduce as a “voluntary measure” exactly the kinds of filtering
by ISPs that were proposed in ACTA. It remains a complete mystery how the
Commission can have proposed illegal measures designed to target ordinary
end-users and still argue that exactly the same approach in ACTA will both
be legal and will not target the end-users.

Another major problem with ACTA is its effect on countries outside the EU, a
point which is also well illustrated by the Scarlet/Sabam case. ACTA
requires states to have injunctions in their national law to oblige third
parties to prevent goods from entering into the channels of commerce. In the
Scarlet/Sabam case, the court wished to impose an injunction on Scarlet (as
a third party) to prevent the transfer of files which rightholders claimed
were unauthorised. Because this was asked for with a legal context and
because the case was referred to the Court of Justice, a ruling was possible
that such an injunction would breach three separate fundamental rights.

If the same measure was proposed in a country outside of the European Union,
it is reasonable to assume that the national court would come to the same
conclusion as the Belgian court. However, in the absence of a comprehensive
set of rules on fundamental rights and without a higher court to refer the
case to, the injunction would simply be applied – breaching fundamental

In summary, Scarlet/Sabam and Scarlet/Netlog prove that it is necessary to
use law to implement any proposed restriction on the right to communication
or privacy online. Relying on “cooperation” mechanisms is a recipe for the
circumvention of democratically agreed legal protections of fundamental
rights. Scarlet/Sabam proves the dangers of the use of injunctions in the
digital environment and the fact that ACTA will inevitably lead to breaches
of fundamental rights outside the EU, contrary to the Union’s obligations to
defend democracy and the rule of law in all of its international relations.

Scarlet/Sabam decision,T,F&num=C-70/10&td=ALL

Netlog/Sabam decision,T,F&num=C%E2%80%91360/10&td=ALL

European Commission’s filtering proposal (only in French, 2.09.2010)

(contribution by Joe McNamee – EDRi)