EU ruling is a victory for common sense, but it won't stop filtering

Pirate flag
Fighting piracy doesn't mean trampling on users' rights, the EU says

Good news for fans of common sense: the European Court of Justice has ruled that ISPs can't be forced to implement widespread, indiscriminate monitoring and filtering of their users' traffic.

Belgian music company SABAM wanted ISPs to monitor all P2P traffic for copyright infringement and block anything potentially illegal; the Court has essentially told them to get bent.

The verdict is hugely important, because it undercuts the key claim of the content industries: that they have a divine right to be protected from naughty people on the internet at all costs. As the Court puts it:

"The protection of the right to intellectual property is enshrined in the Charter of Fundamental Rights of theEU. 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."

In other words: just because you have intellectual property rights doesn't mean your rights are more important than everybody else's.

Fun with filters

The verdict doesn't mean the end of filtering, but it does mean that ISPs might not be liable for the costs of any filtering scheme; under current legislation ISPs such as BT have to pay to filter sites such as Newzbin2, and the EU verdict suggests that BT should now appeal against that.

What the verdict doesn't do is make filtering illegal. It states that intellectual property rights owners can apply for injunctions against intermediaries such as ISPs, and those injunctions are covered by national laws; however, those injunctions must also comply with EU laws such as the E-commerce directive.

In practice that means ISPs can be compelled to install filtering, but not if such filtering infringes ISPs' rights to conduct their business, if it prevents the transmission of legal content or if it infringes the protection of individuals' personal data.

Site-specific bans such as the one on Newzbin2 would probably still be permitted, but insane ideas such as SABAM's demands for monitoring every P2P packet would be thrown out.

So what happens now? National governments - which, as we know, are very pally with the content industries - effectively have two options: change their own laws so they comply with EU law, or lobby hard for changes to the law so that legislation such as the UK's Digital Economy Act and France's HADOPI can remain in place.

My money's on the latter - and I suspect the entertainment industry's money is going to be spent on that too.


Carrie Marshall

Writer, broadcaster, musician and kitchen gadget obsessive Carrie Marshall has been writing about tech since 1998, contributing sage advice and odd opinions to all kinds of magazines and websites as well as writing more than a dozen books. Her memoir, Carrie Kills A Man, is on sale now and her next book, about pop music, is out in 2025. She is the singer in Glaswegian rock band Unquiet Mind.