‘Scarlet Extended’ – ECJ to prohibit internet filtering?
Today Advocate General Cruz Villalón gave his opinion on the ‘Scarlet Extended’ case which I have been talking about in January. Even if I don’t share the very optimistic view of Rick Falkvinge that the ECJ will outlaw internet filtering in general, this is definitely a good sign for the protection of fundamental rights in the EU!
The facts and my initial analysis of the case can be found in my earlier blogpost.
Let’s start with the good news and cite the AG1:
Advocate General Cruz Villalón considers 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 Charterof Fundamental Rights.
This sentence is important for all people fighting internet filtering and censorship as the AG2 clearly confirms that the following fundamental human rights are in fact violated by installing general internet filters:
- right to respect for the privacy of communications
- right to protection of personal data
- freedom of information
No Sarkozy, Zensursula, Orbán, Censilia etc. can claim that internet filtering is not infringing fundamental human rights!
Unfortunately the AG opinion does not completely prohibit any general internet filtering mechanism.
The Advocate General points out, however, that the Charter of Fundamental Rights accepts that the exercise of the rights and freedoms which it guarantees may be restricted, on condition, inter alia, that any such restriction is ‘in accordance with the law’. [...] Thus, in his view, a restriction on the rights and freedoms of internet users such as that at issue would be permissible only if it were adopted on a national legal basis which was accessible, clear and predictable.
Reading the full text3 makes this clearer: it seems that while in this case a court cannot order (by an injunction) a direct measure or a measure with the immediate effect of a general internet filtering, a law still can! This would mean that neither the French or German approach of internet filtering, nor the Censilia approach would be in principle incompatible with the EU Charter of fundamental rights. The AG refers to the principles of proportionality and necessity among others, which means that even national laws and European directives or regulations must respect some principles, but this is far from a general prohibition of internet filtering.
The ugly (truth)
We can count the ‘Scarlet Extended’ case as a win so far4; general internet filtering clearly violates fundamental human rights. However these rights can be limited under certain conditions (proportionality, necessity) by law. In this case this means that a court injunction is clearly not the right ‘tool’ to order general internet filters. But is does not mean that national Parliaments cannot pass laws to that effect.
The fight for our fundamental rights continues!
- The Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the AdvocatesGeneral to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date. (copy-pasted from here) ↩
- While his opinion is not binding to the court, it is well respected and has an important weight on a European level. ↩
- only available in French atm. ↩
- Always remember that the AG’s opinion is not binding, so the ECJ still has to give the verdict! ↩