2011-04-15 European Court of Justice opines that ISP filtering and blocking is prohibited under the Charter of Fundamental Rights

The European Court of Justice, the highest court in Europe, today gave its preliminary opinion on the appeal case between artists’ rights agency Sabam (Société Belge des Auteurs, Compositeurs et Editeurs) and ISP Scarlet Extended. Sabam won a court order in 2007 in Brussels Court which would force the ISP (then called Tiscali) to block users from illegally downloading copyrighted material and gave it six months to install the approved system Audible Magic music fingerprinting system. The ISP said the spying on its customers this entailed would be illegal.

In the preliminary opinion, which is usually the basis of the final ruling, Advocate General Cruz Villalón considers that the installation of that filtering and blocking system is a restriction on the right to respect for the privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights. By the same token, the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights.

The Advocate General also objected to the system on the grounds that it would operate “…in abstracto and as a preventive measure, which means that a finding would not first have been made that there had been an actual infringement of an intellectual property right or even that an imminent infringement was likely.”