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 that 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 that 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 that 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."
