Privatised enforcement Series C: The law according to the Advocate General

By EDRi · April 20, 2011

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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

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

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)