Scarlet v SABAM: a win for fundamental rights and Internet freedoms

By EDRi · November 30, 2011

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Deutsch: [Scarlet vs. SABAM: Ein Sieg für die Grundrechte und die Freiheit des Internets |]

On 24 November 2011, the European Court of Justice decided that an Internet
service provider (ISP) can not be ordered to install a system of filtering
of all electronic communications and blocking certain content in order to
protect intellectual property rights. The Court largely based its decision
on the Charter of Fundamental Rights.

The ruling is hugely important for the openness of the Internet, and
therefore for the fundamental rights value and the economic value of the

SABAM (the Belgian collective society – Société belge des auteurs,
compositeurs et éditeurs) wanted the ISP Scarlet to install a generalised
filtering system for all incoming and outgoing electronic communications
passing through its services and to block potentially unlawful
communications. In First Instance, while refusing the liability of the ISP,
the Brussels Court concluded that the SABAM’s claim was legitimate and that
a filtering system had to be deployed. Scarlet appealed and the case was
referred to the Court of Justice of the European Union.

In its decision, the Court of Justice ruled that a filtering and blocking
system for all its customers for an unlimited period, in abstracto and as
preventive measure, violates fundamental rights, more particularly the right
to privacy, freedom of communication and freedom of information. In
addition, it breaches the freedom of ISPs to conduct business.

The EU ruling underlines the importance of an open and neutral Internet,
respecting fundamental rights. The alternative would have lead to a
permanent surveillance and filtering of all European networks. The
consequences would have been catastrophic for democracy, civil rights and
the Internet economy. The role of Internet intermediaries is to provide the
infrastructures and services that allow users to access and use the
Internet, not to police the flows of traffic to privately enforce
intellectual property rights. By protecting ISPs, the ruling is likely to
preserve key elements of the online economy and society. The Court sought
the right balance between the interest of the rightsholders on the one hand
and the interests of the ISPs and of citizens on the other hand.

Internet blocking is not completely banned by the decision neither does it
deny ISPs’ liability in every situation. On the former, the EU Court had to
rule on the liability of the type of blocking/filtering that was proposed.
On that point, it declared that the level of filtering and blocking asked
for in the case was too broad in terms of material and geographic scopes,
that the legitimate interests of society as a whole outweighed the other
interests at stake and that the unlimited and open-ended nature of the
blocking was excessive. As a result, the Court ruled that the proposed
measures were in violation of the European law. The Court could not have
made a ruling on unknown future technologies and developments or answered
questions it was not asked. On ISP liability, the ruling avoids the
circumvention of the existing EU law. In the current framework in the
e-commerce Directive (2000/31/EC), the ISP cannot be held liable for its
customers’ behaviour when the ISP is unaware of illegal activity.

Far from creating a law free zone, the ruling sets safeguards to better
protect fundamental rights on the Internet. The decision re-establishes the
importance of the rule of law in the digital environment. Illegal behaviour
remains illegal but the policing stays the responsibility of the state, and
the liability stays on the person responsible for the illegal content.

ECJ Decision Scarlet vs Sabam (24.11.2011)

Press release and FAQ from EDRi (24.11.2011)

Press release from ECJ (24.11.2011)

(Contribution by Marie Humeau – EDRi)