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European court says ISPs don’t have to filter content

European Court of Justice

The European Court of Justice has ruled (PDF) that Internet service providers cannot be required to install filtering systems designed to block downloads of illegal content, finding that such broad filtering violates the EU’s E-Commerce Directive and could impede legal uses of the Internet and legitimate file transfers.

The case dates back to 2004 when the Belgian company SABAM (which handles authorizing third-party rights to music) found that customers of a local ISP, Scarlet, were downloading music files illegally using peer-to-peer networking services. SABAM brought the case to court, and the Brussels Court of First Instance ordered Scarlet to prevent its customers from sending and receiving any file in SABAM’s catalog.

Scarlet appealed the ruling and now—seven years later—the European Court of First Instance has agreed. The court notes that content providers can request ISPs block access to specific third parties that are infringing on their rights. However, a requirement to filter all users’ online activity to block potentially-illegal content transfer—such as that requested by SABAM—violates the EU E-Commerce Directive, which prevents member states from requiring ISPs to generally monitor the information that traverses their networks.

“Such an injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content with the result that its introduction could lead to the blocking of lawful communications,” the court said in a statement.

The court also noted that a general filtering system would be “liable to infringe on the fundamental rights of its customers,” including the right to protect their personal data and receive or impart information—both of which are ensured by the EU’s Charter of Fundamental Rights.

Consumer rights and Internet freedom advocates have generally welcomed the ruling.

“The alternative would have been a decision which would ultimately have put all European networks under permanent surveillance and filtering. This would have had major negative consequences for both fundamental rights and the online economy in Europe,” wrote the advocacy group European Digital Rights, in a statement.

When the case was initially filed, the music industry (along with film, television, and other media) had been looking seriously at requiring ISPs to install filtering software to block illegal transfer of copyrighted material. However, filtering systems represent a tremendous (and costly) technical challenge European countries have expressed a strong reluctance to engage in deep filtering of everyday Internet users’ activities. More recently, the music industry had focused on the path approved by the European Court of Justice: working with ISPs to get specific sites blocked for distributing infringing content.

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