‘Scarlet Extended’ – ECJ oulaws “general monitoring obligations” on ISPs
I previously wrote about the first hearing and the Advocate General’s opinion of the Scarlet case before the European Court of Justice. Today, the court gave its verdict which reflects my opinion expressed earlier: a court ordered injunction forcing ISPs to install general monitoring of consumers internet traffic is a violation of the right to protection of personal data and the freedom to receive or impart information. However, as predicted, the court does not prohibit internet filtering all together.
Large-scale internet filters violate human rights
EU law precludes the imposition of an injunction by a national court which requires an internet service provider to install a filtering system with a view to preventing the illegal downloading of files
It is true that the protection of the right to intellectual property is enshrined in the Charter of Fundamental Rights of the EU2. There is, however, nothing whatsoever in the wording of the Charter or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected.
What is more, the effects of the injunction would not be limited to Scarlet, as the filtering system would also be liable to infringe the fundamental rights of its customers, namely their right to protection of their personal data3 and their right to receive or impart information4, which are rights safeguarded by the Charter of Fundamental Rights of the EU.
But: copyright claims still reason for website blocking
In its judgment delivered today, the Court points out, first of all, that holders of intellectual-property rights may apply for an injunction against intermediaries, such as internet service providers, whose services are being used by a third party to infringe their rights. The rules for the operation of injunctions are a matter for national law.
General monitoring of internet traffic violates civil rights, however if
the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the right to receive or impart information, on the other
is respected, filtering systems are still legal. The definition of a “fair balance” is a tricky one of course, at least for the courts. In my opinion copyright claims never outweigh the right to privacy or freedom of information.
The EU law, however, only applies to large-scale filtering of all incoming and outgoing communications. Content owners can still strong-arm ISPs into blocking individual websites, as the MPA has succesfully done with BT and content hub Newzbin 2, earlier this year.
Before criticizing the ECJ it must be noted that the EU Charter of Fundamental Rights explicitly mentions “intellectual property” which has to be “protected”. The court cannot completely overlook article 17 of the Charter but is bound by the text, especially if it is so explicit. Until the mention of “intellectual property” is purged from the Charter and the minds of the Members of EU Parliament, Commission and Council… The fight for our fundamental rights continues!