ECJ returns on ISPs’ liability, privacy and freedom of information


Today the European Court of Justice issued its decision in the case C- 70/10 Scarlet Extended SA vs SABAM(Societè belge des auteurs, compositeurs et editeurs SCRL).

Despite its brevity the ruling faced different issues involved on the future development of the internet in the European legal framework: access provider liability, copyright protection, privacy and, at last but not least, net neutrality.

Here follows the key-points of the ECJ’s ruling:

  • According to Enforcement directive (directive 2004/48/EC) to protect copyright and related rights national Courts in order to prevent future infringements of IPRs through Information-society services might adopt precautionary measures towards Internet Service providers. Such measures must be taken in place in accordance with article 15 of E-commerce directive (Directive 2000/31/EC) which stated that ISPs are not due to a general control over data shared by users through their services;
  • as a consequence, such measures in order to prevent any further copyright infringement  cannot impose to ISPs an active, preventive and general monitoring over all data shared by users;
  • those measures must guarantee a fair and effective balance between Intellectual property rights and fundamental rights of users involved such as privacy and freedom of information;
  • as a consequence, such measures cannot impose to ISP the adoption of filtering system by which it is possible and necessary to collect users’ personal data (as their IP address);
  • such precautionary measures must be suitable to distinguish between licit and illicit contents and information otherwise they might compromise the fundamental right of freedom of information;
  • the protection system of IPRs through internet (as established by directives 2001/29/EC and 2004/48/EC) cannot be considered unrelated to the legal framework on privacy (Directive 95/46/EC) and Information society services (Directive 2000/31/EC). By interpreting the European legislative patchwork, as above pinpointed, it is possible to reach the fair and effective balance between of the fundamental rights involved.

Full text of the decision is available here.

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