ISP liability to get ECJ hearing

Just on the coattails of Roadshow Films v iiNet, we are about to get another landmark ruling on ISP liability. If there was any doubt that we are witnessing a legal struggle between intermediaries and content owners, we can lay those doubts to rest.

Sabam v Tiscali has been a long-running case in Belgian courts with regards to ISP filtering (see TJ McIntyre’s report on the 2007 ruling here). The case was brought by the Belgian Society of Authors, Composers, and Publishers (Sabam) against ISP Tiscali (which later changed its name to Scarlet). Sabam wanted Tiscali to install filtering software in its network which would allegedly curb illicit filesharing in P2P networks. The first ruling in the District Court of Brussels agreed with the claimants based entirely on expert reports about the feasibility of deploying filtering systems. The expert argued that there were at least thirteen systems capable of effectively filtering P2P transmissions, seven of which could be deployed in Tiscali’s servers. Tiscali’s response was that these solutions were partial and ineffective at best, as P2P clients are increasingly becoming more difficult to filter because of encryption technology. The ruling states:

“[…] it must be noted that the issue of future potential encryption cannot today be an obstacle to injunctive measures since this one is currently and technically possible and capable of producing a result, as it is in the case before this court; that the internet sector is constantly evolving; that in crafting injunctive relief, the judge cannot consider speculations about potential future technical developments, especially if these might also be subject to parallel adaptations concerning blocking and filtering measures […]

This is an interesting paragraph for various reasons, one is a particular hobby-horse of mine. How does the law respond to changing technological challenges? In this specific case, the Belgian court has decided to ignore future considerations in order to issue an injunction based on existing technologies. Reasonable approach, but I believe the court were misguided by the experts, as nowadays most Bittorrent clients have encryption capabilities.

Unsurprisingly, the decision was appealed, and the Brussels Court of Appeals has referred two questions to the European Court of Justice. According to the IPKat, these questions are:

“1. Do Directives 2001/29 [copyright in the information society] and 2004/48 [the IP enforcement directive], read in conjunction with Directives 95/46 [on the processing of personal data], 2000/31 [the e-commerce directive] and 2002/58 [on privacy and electronic communications] and interpreted with regard to Articles 8 and 10 of the European Convention on Human Rights, allow Member States to authorize a national court, seized in a procedure on the merits and on solely on the basis of the legal provision which holds that “They [the national court] can equally impose a prohibitory injunction on intermediaries whose services are relied upon by a third party to infringe copyright or a neighbouring right”, to order an ISP to put into place, vis-a-vis all of its customers, in abstracto and as a preventive measure, at the expense of the ISP and without limitation in time, a system filtering all electronic communications, both incoming and outcoming, passing through its service, in particular by means of peer to peer software, with the aim to identify the circulation on its network of electronic files containing a musical, cinematographic or audiovisual work to which the claimant alleges to enjoy rights and to then block the transfer thereof, either at the request or at the time it is sent?

2. If question 1 is answered in the positive, do these directives require that the national court, seized to rule over a request for injunctive relief against an intermediary on whose services a third party relies to infringe a copyright, applies the principle of proportionality when it is asked to rule over the efficacy and the dissuasive effect of the requested measure?”

Unfortunately, I have not been able to uncover any more detail (and I do not speak French), but what I have seen so far seems extremely interesting. Those two questions lie at the heart of ISP liability and indemnity in Europe, and any ECJ ruling on them could prove vital for the future of intermediaries.