Sabam v. Scarlet (ex Tiscali) / Peer-to-peer and ISPs liability
The case can be summarized as follows. Belgian society of authors, composers and publishers, SABAM, sued Scarlet, an access provider. “A lot of Internet users are massively downloading copyrighted works, by way of P2P software, without the authors, composers and publishers having authorised it or having been remunerated,” said a statement from SABAM. “If all Belgian Internet access providers would adopt the technical measures proposed by the expert so that P2P software could no longer be used for exchanging copyright works, this would put an end to the illegal traffic as Belgium is concerned.”
The First Instance Court of Brussels hold a controversial decision. For the first time – at least after e-commerce directive – a court has imposed a duty for ISPs to block file-sharing. It is important to remind court’s expert opinion. According to them there are eleven ways for blocking material stored by ISPs. It is likely that court’s decision has been strongly influenced by this statement.
According to the court this kind of obligation for ISPs is not a general obligation to monitor (which should be in contrast with article 15 e-commerce directive) In fact, the court could not impose a general duty to monitor information transmitted or stored by ISPs, nor a general obligation to actively seek facts or circumstances indicating illegal activity committed on their networks.
But the decision also states that blocking or filtering some specific information does not represent a general duty to monitor and that whereas no. 40 of e-commerce directive should not preclude the development and effective operation, by the different interested parties, of technical systems of protection and identification and of technical surveillance instruments made possible by digital technology. Finally the court (maybe aware of Italian Peppermint case?) stated that filters and blocking systems do not violate privacy legislation, as long as they do not process personal data.
The outcome of the case could represent a landmark decision and jeopardizes immunities provided by e-commerce directive.
The text of the decision (in French): http://www.juriscom.net/jpt/visu.php?ID=939
