Belgian ISP Scarlet has appealed against a surprise court ruling forcing it to filter customers' traffic for unlawful file sharing. The Belgian ISP Association says the trial judge did not examine the law closely enough.
Scarlet, formerly a wing of Italy's Tiscali, was ordered earlier this month to use Audible Magic software to scan peer-to-peer (P2P) network traffic and block files identified as unauthorised copyrighted material. It was the first time in Europe that an ISP was held responsible for the content of its subscribers' traffic.
ISPs are protected by laws deriving from the E-Commerce Directive, which protect such "mere conduits" from liability for the content of their traffic. The Belgian court's ruling challenges the limits of that protection.
Laws emanating from another EU Directive, the Copyright Directive, in some circumstances run counter to the E-Commerce Directive by giving copyright owners certain powers over intermediaries whose services are used for piracy.
Geert Somers is the head of the legal work group at the Belgian ISP Association (ISPA). He told weekly technology law podcast OUT-LAW Radio that he believes the E-Commerce Directive's protection for ISPs must take precedence over other directives.
"The E-Commerce Directive needs to be seen as prevailing over the Copyright Directive," he said. "As a matter of fact I think that the relationship between various directives – the E-Commerce Directive, the Copyright Directive and the Intellectual Property Rights Enforcement Directive – will have to be further examined by the Court of Appeals."
"As a matter of fact the implementing legislation in Belgium at the moment is not entirely clear and I strongly believe the judge did not examine this relationship sufficiently," said Somers.
The E-Commerce and Copyright Directives were framed at around the same time and were not intended to conflict with one another, but technology lawyer Struan Robertson of Pinsent Masons, the law firm behind OUT-LAW.COM, says a clash was always a possibility.
"The E-Commerce Directive was passed first. It said that intermediaries acting as mere conduits were protected and it prohibited any general obligation to monitor. The Copyright Directive came along next and it said that copyright owners should be able to get court orders against intermediaries if their services are used for piracy," said Robertson.
"The two laws were meant to complement each other but a clash was always possible and it's really always been for a court to decide how exactly we should balance the protection that exists in the E-Commerce Directive and the powers given to copyright owners in the Copyright Directive," he said.
"The Belgian court took the view that there is no clash," said Robertson. "The court claimed that its injunction does not require Scarlet to 'monitor' its network – it tried to distinguish monitoring from filtering; and it also claimed that the mere conduit defence was not lost."
The court said that the E-commerce Directive "does not affect the judge's power of injunction and does not limit the measures that can be taken by the latter vis-à-vis the provider". It said that the mere conduit defence was irrelevant to the case.
It also said the technical solutions "are limited to blocking or filtering certain information transmitted on the Scarlet network; they do not constitute a general obligation to monitor the network". It compared blocking software to anti-virus and anti-spam software, describing it as "a simple technical instrument which as such does not perform any activities involving the identification of internet users".
There are fears that the ruling could affect other ISP businesses in Belgium and could even prompt a re-evaluation of laws elsewhere in Europe. Belgium had not implemented the Copyright Directive into its own laws at the time of the case, so the court focused on the wording of the Directives, which makes the case more significant for other EU countries.
However, one of Belgium's biggest ISPs, Belgacom, rejected the suggestion that the ruling will automatically apply to it.
"The Belgian legal system cannot be compared to legal system in England where you have precedents," said Belgacom spokesman Jean Margot. "It doesn't work that way here; every case has to come up with a different result, a judge could make a different result from another judge in a new case, it is not always the same."
"Probably the next judge will not follow the first judge, there are good arguments, we will have to wait and see," said Margot.
The authors' rights group which brought the court action, SABAM, has already written to Belgium's main ISPs asking them to fall into line with the Scarlet judgment.
"A couple of days ago we addressed the main Belgian access providers to draw their attention to the legal decision that has been made in the case," said Thierry Dachelet, spokesman for SABAM. "Before starting any legal proceedings to impose this decision on all other Belgian access providers on pain of penalty we wished to check whether they are ready to make an agreement or not."
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