Web blocking could be illegal, says top EU legal adviser

ISPs blocking and filtering internet traffic to prevent unauthorised downloads of software, music and films may be illegal, one of Europe's top legal advisers has said.

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.

– Pedro Cruz Villalón, ECJ

Belgian courts were wrong to force an ISP to block its users from sending copyright-infringing content, as doing so was incompatible with EU laws on privacy, data protection and freedom of information, advocate general Pedro Cruz Villalón told the European Court of Justice (ECJ) on Thursday.

"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," an ECJ statement (PDF) outlining Cruz Villalón's opinion said. "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."

Cruz Villalón criticised the interpretation of Belgian law that had led to that country's rights-holder organisation, Sabam, winning in court against an ISP involved in the case, Scarlet.

'Lasting effect' on users

The Sabam vs Scarlet case dates back to 2004, when Sabam won a judicial declaration finding that people had used Scarlet's internet services to exchange copyrighted music, particularly via peer-to-peer (P2P) technology. In 2007, another judgement ordered Scarlet to stop its customers from infringing on copyright in this way. Scarlet, by then a subsidiary of Tiscali, took the case to the Belgian Court of Appeal, which in 2010 asked the ECJ for guidance.

Advocates general give advice to the ECJ, so their opinions are not legally binding. Nonetheless, Cruz Villalón is of the opinion that all ISPs would ultimately be obliged to filter their users' content, were the Scarlet judgement to be upheld, and this would contravene European law. He also pointed out that the Scarlet judgement would impede communications not just for customers of that ISP, but also for those with whom they communicate.

"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 ECJ statement read. "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."

Cruz Villalón also noted that the Belgian judgement would force ISPs such as Scarlet to pay for these filtering systems to be installed, making internet providers financially responsible for a battle being fought by rights-holders.

"According to the Advocate General, it cannot be held that the obligation on internet service providers to install the filtering and blocking system at issue, entirely at their own expense, was laid down expressly, and in clear, precise and predictable terms, in the Belgian statutory provision at issue," the statement read. "In fact, the obligation imposed on internet service providers is both special and 'new' (unexpected, even)."

Cruz Villalón therefore urged the ECJ to rule that no national court in the EU should force an ISP to install systems to identify copyrighted content and block or filter it, on the basis of the Belgian court's ruling against Scarlet.

Digital Economy Act review

A similar case is currently going on in the UK, with BT and TalkTalk having launched a judicial review against the Digital Economy Act. The ISPs say the act would infringe on EU laws regarding privacy and the obligations of ISPs to spy on their customers.

TalkTalk said on Friday that it would not comment on Cruz Villalón's opinion while that judicial review is ongoing, and BT had not responded to a request for comment at the time of writing.

The UK's ISP Association (ISPA) said it welcomed the Cruz Villalón's opinion.

"ISPA has long maintained that technical measures are a disproportionate way to address online copyright infringement and whilst this is the not the final ruling, we are encouraged by the judgment," ISPA secretary-general Nicholas Lansman said in a statement.