SABAM v Tiscali – Questions from Belgian court to the ECJ published

On 28 January 2010 the Belgian Court of Appeal referred two questions to the ECJ in the case of SABAM v Tiscali on the issue of whether a national court is entitled to impose an obligation on an ISP to filter its internet traffic, and, if so, to what extent the national court has to consider the proportionality of the measure.

The questions referred to the ECJ (translated from French) are as follows:

“1. Do Directives 2001/29 [on copyright and related rights in the information society] and 2004/48 [on the enforcement of IP rights], read alongside Directives 95/46 [on the protection of individuals in relation to the processing of personal data], 2000/31[on electronic commerce] and 2002/58[on processing of personal data and the protection of privacy in electronic communications] and interpreted in light of Articles 8 and 10 of the European Convention on Human Rights, allow member states to authorise a judge from their national court system, using only the current legal framework, “to grant an injunction against the intermediaries whose services are used by a third party to undermine the author’s right or other similar right” to order an Internet Service Provider (ISP) to put in place for all its customers, at the ISP’s expense and on an ongoing basis, a filtering system for all electronic communications using peer-to-peer software, whether they are being received or being sent out, in order to identify the circulation of electronic files concerning a musical, cinematic or audio-visual work, across the ISP’s network, over which the claimant aims to preserve his rights and subsequently prevent the transfer/dissemination of the work, whether it is at the request stage or at the point of sending/ dispatch?

2. Should the answer to the above question be affirmative, would these Directives mean that a domestic judge, who presides over an application for an injunction against an intermediary whose services are used by a third party to undermine the author’s rights, should apply the principle of proportionality when he rules on how efficient a solution and how dissuasive the proposed measure would be?”

Comment

The answers to the questions posed to the ECJ will be of considerable interest and importance to ISPs, rights holders and the general public at large.

The first instance decision in SABAM v Tiscali was in some ways surprising, as many had believed Article 5 of the Directive on Privacy and Electronic Communications (2002/58/EC) would prevent ISPs from compromising the confidentiality of customers’ communications.

Under Article 15(1) of the same Directive, Member States may only adopt legislative measures to restrict the scope of this obligation of confidentiality where it is necessary, appropriate and proportionate. As Parliament currently considers legislation in the form of the Digital Economy Bill, which amongst other things is drafted to allow the Secretary of State to specify circumstances in which ISPs can impose technical measures on subscribers, the ECJ’s views on proportionality in this area are keenly anticipated.

The answers provided by the ECJ will impact heavily on the manner in which ISPs operate their businesses. If the injunction is upheld, this may pave the way for ISPs to be required to use filtering systems in other jurisdictions. If so, ISPs would have to invest a great deal of time and money in ensuring that the filtering systems that they employ are sufficient, and there will be implications for their relations with customers, who may not appreciate having their activities controlled in such a manner, not to mention the occasions when, inevitably, the software used could block the legitimate transfer of non-rights protected material.

If the injunction is permitted, then rights holders, and bodies such as SABAM, will hope that this will be a way of reducing the amount of copyright infringement that occurs through the illegal sharing of music and video files over P2P networks and result in increased revenue streams from additional purchases of their works.

The case also demonstrates an increasing trend in attempts to centralise enforcement of IP rights. Readers of Law-Now will recall similar issues in respect of trade marks arose in the case of L’Oreal v eBay and others, reported here which referred questions to the ECJ as to whether it was possible to obtain an injunction against eBay to prevent infringement of a particular trade mark in general on the site, rather than in respect of a specific act of infringement.

As with many references to the ECJ, the position on the ground may well have moved on significantly by the time the ECJ delivers its answers.