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The Advocate General of the European Court of Justice, Cruz Villalon, has issued a very interesting opinion on the possibility for courts to order Internet Service Providers (ISPs) to filter and block files infringing copyrights.
The background information is the following: Sabam, the Belgian association of authors and editors, brought a claim against Scarlet for the breach of copyright in the musical works that were shared without the consent from the copyright owners through P2P software by means of Scarlet’s network. On the basis of that Sabam sought the issue of an order requiring Scarlet to block or make impossible the sending or the receiving by Sabam’s customers in any way of files containing a musical work, using P2P software, without the permission of the copyrightholders. After a court decision supporting Sabam’s position, the case was brought to the attention of the European Court of Justice.
Interestingly the Advocate General in his opinion on the case held that:
“the installation of that filtering and blocking system is a restriction on the right to respect for the privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights. By the same token, the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights“.
The Advocate General added that the Charter of Fundamental Rights accepts a restriction to the exercise of the rights and freedoms only if such restriction was adopted “on a national legal basis which was accessible, clear and predictable” rather than through a mere court order.
It is worth it to say that the opinion of the Advocate General is not binding for the European Court of Justice, but if the same view will be followed by the court, it will be interesting to see its effect on the recent Italian court decisions involving Yahoo! and YouTube where filtering obligations have been ordered to such entities with reference to future copyright breaches.
Are we close to a landscape decision that will affect the future case law on ISPs’ obligations? It will be interesting the reaction from copyright owners to such opinion. Do you want to discuss about the above? Feel free to contact me, Giulio Coraggio.
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