EU Advocate General Says ISP Filtering To Block Infringement Violates Fundamental Rights Charter

from the nicely-said dept

A bunch of folks have been passing along the opinion statement by the European Court of Justice’s Advocate General, Pedro Cruz Villalon, that a blanket requirement that ISPs block copyright infringement is a violation of the EU’s Human Fundamental Rights Charter (pdf). The opinion came in relation to an ongoing lawsuit between the Belgian anti-piracy organization SABAM and the ISP Scarlet. A Belgian court had ruled that Scarlet had to put in place filters to block infringement, but Villalon is saying that would violate fundamental rights for a variety of reasons. Most importantly, he recognizes that copyright infringement is something that is not obvious, but is only determined after a court ruling, and these filters would clearly block files that had not yet been determined to be infringing:

The court order would apply in abstracto and as a preventive measure, which means that a finding would not first have been made that there had been an actual infringement of an intellectual property right or even that an imminent infringement was likely.

Nice to see more court systems recognizing this. This was the same point that was key to the iiNet ruling in Australia. Many defenders of mandatory filtering seem to think that it’s “obvious” what’s infringing and what’s not. Yet, as has been seen, time and time again, that’s not the case at all. Demands for aggressive filters assume that copyright infringement is something that is clear and obvious, rather than something established by a court ruling. Thankfully, the European Court of Justice’s Advocate General seems to recognize this key point.

On top of that, he points out that such a required filter on Scarlet would be way too broad, in that it would also impact many people not a party to the case, or not even under the jurisdiction of Belgian law:

In particular, the Advocate General points out that the court order would have a lasting effect for an unspecified number of legal or natural persons irrespective of whether they have a contractual relationship with Scarlet and regardless of their State of residence. The system must be capable of blocking any file sent by an internet user who is one of Scarlet?s customers to another internet user — who may or may not be one of Scarlet?s customers and who may or may not live in Belgium — where that file is thought to infringe a copyright managed, collected or protected by Sabam.

From that, he concludes:

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.

In other words, such filters… violate fundamental rights. The various countries (hello Netherlands) pushing for such filters might want to pay attention.

Now, this isn’t a final ruling. It’s basically just the recommendation from the Advocate General to the court on how it should rule. Hopefully, the court pays attention.

Post updated to reflect that it was the “fundamental” rights charter, rather than the “human” rights charter. Sorry for the mistake.

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Comments on “EU Advocate General Says ISP Filtering To Block Infringement Violates Fundamental Rights Charter”

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Duke (profile) says:

This isn’t about “human rights”, but about “fundamental rights”. It may sound petty, but the difference is between the EU charter (which actually mentions “intellectual property” as something to be protected in Art 17(2)), and the European Convention on Human Rights which only talks about “enjoyment of possessions”. This is going through the Courts of Justice of the European Union, so they are referring to the charter of fundamental rights (which only really came in in 2009) rather than the European Court of Human Rights.

In any case, it doesn’t look like the Advocate General actually objected to the principle of web-blocking, merely that it shouldn’t be done arbitrarily by a Court order – but it would be fine if done through clear, predictable and transparent legislation.

[Disclaimer: I haven’t read the opinion yet – it is only available in French.]

Hephaestus (profile) says:

Re: Re:

“This isn’t about “human rights”, but about “fundamental rights”.”

I was going to point that out also …. but instead a repost

The new Internet Freedom Provision of the EU Telecoms Reform states.

“Any of these measures regarding end-users? access to or use of services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law, including effective judicial protection and due process. Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy. A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms . The right to an effective and timely judicial review shall be guaranteed.?”

Just read that one section and you find 7 different ways to fight this in the EU court.

1) principle of presumption of innocence
2) the right to privacy
3) A prior fair and impartial procedure shall be guaranteed
4) the right to be heard
5) effective judicial protection
6) due process
7) their implementation shall be subject to adequate procedural safeguards

Then you also have the fundamental rights issue …

OF THE EUROPEAN UNION (applicable sections)

Article 8
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the
person concerned or some other legitimate basis laid down by law. Everyone has the right of access to
data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority.

Article 11
Freedom of expression and information
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions
and to receive and impart information and ideas without interference by public authority and regardless
of frontiers.

Article 13
Freedom of the arts and sciences
The arts and scientific research shall be free of constraint. Academic freedom shall be respected.

Article 36
Access to services of general economic interest
The Union recognises and respects access to services of general economic interest as provided for in national laws and practices, in accordance with the Treaty establishing the European Community, in order to promote the social and territorial cohesion of the Union.

Article 38
Consumer protection
Union policies shall ensure a high level of consumer protection.

Article 41
Right to good administration
1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union.
2. This right includes:
? the right of every person to be heard, before any individual measure which would affect him or her
adversely is taken;
? the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;
? the obligation of the administration to give reasons for its decisions.
3.Every person has the right to have the Community make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.

Duke (profile) says:

Re: Re:

If you’re going to go with the Charter, you have to include

Article 17
Right to property
1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.
2. Intellectual property shall be protected.

Article 47
Right to an effective remedy and to a fair trial
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. …

Interestingly, Article 48 (Presumption of innocence) may not apply as that only refers to people being charged with something – something that web-blocking tends to avoid.

The Article 17 right highlights the dangers of being sloppy with terminology and the success of the “intellectual property” campaign. By getting it into the public conscious that copyright etc. are property (which, to a minor degree, they are) it becomes a lot easier to convince lawmakers to protect them along with the right to property.

Fortunately the Article 1 Protocol 1 right to property in the ECHR is suitably worded that it probably doesn’t cover copyright etc. – not sure if there is case law on that, though.

Hephaestus (profile) says:

Re: Re: Re: Re:

Actually I cut and pasted that from a comment here or here I made about the DEA in the UK. It also applys to ACTA and HADOPI.

What I was trying to point out then was, The Internet Freedom Provision of the EU Telecoms Reform, and The Charter Of Fundamental Rights, anything the content industry wants to implement is moot. It is something I have been trying to point out for a while now. Much like WIPO and TRIPs make ACTA and its upcoming big brother a waste of time because it was negotiated outside of the international framework for intellectual property and can be challenged in that reguard. India is actually going to challenge ACTA and try to have it declared invalid as are several South American countries.

The EU’s laws, charters, and agreements apply to ….
-Three Strikes
-Blocking Web sites
-Any ISP monitoring what so ever
-Third parties gathering information
-You are a pirate fees (blank media, electronic devices, etc)
-Packet inspection and blocking content (filtering as this article is about)


Getting back to the article. Advocate Genral Cruz hit on all the relevant points. Article 48 wouldn’t apply because as you said criminal. But if you throw in Article 54 (and this is a stretch)

“Article 54 – Prohibition of abuse of rights – Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein.”

You could however argue. Web monitoring and blocking is limiting to a greater extent than allowed by EU law. Due to the fact that that there is no judicial oversight if a private corporation or state owned entity filters, monitors, and blocks content. Also citizens of the EU member states may not contractually sign away the rights provided in the CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION. (List the rights here) …

What that does is remove both options laws, and contracts with ISP to allow for web blocking. As I said a bit of a stretch, but if content lawyer can do this so can we.

Anonymous Coward says:

Just a precision about SABAM

The SABAM is not an anti-piracy organization but a music royalty society. Their job is to tax money to everyone everytime some music is played somewhere.

But, yeah, they act like a real anti-piracy organization, asking for Net filtering, throwing teenagers to jail and so on. And, like every good anti-piracy group, they often ?forget? to respect the laws (did you know, for example, that the SABAM always collects money when you play music that is under a Creative Commons licence or even if the artists have no contract with them?)

Small wonder everybody sees them as leeches here in Belgium. Just my two cents.

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