In the never ending fight against online piracy one of the most controversial topic is the alleged liability of Internet Service Providers (ISP).
 
In the framework of a lawsuit between a Belgian ISP and a Belgian collecting society which reached the European Court of Justice (C-70/10), the Advocate General recently concluded that a judicial order imposing to an ISP to set up a system for filtering and blocking the electronic communications among users to protect intellectual propery rights constitutes a prejudice against the fundamental rights of individuals, if the order has been issued according to a national law which is "not accessible, clear and predictable".
 
In fact, the Charter of Fundamental Rights of the European Union provides that any limitation on the exercise of the rights and freedoms recognised by the Charter itself (including freedom of information) must be provided for by law. Such restriction, according to the Advocate General's view, would be permissible only if adopted on a national legal basis which is accessible, clear and predictable. According to the Advocate General, the Belgian statutory provision on which basis the order to filter and block was initally issued does not satisfy those requirements.
 
Consequently, the Advocate General proposed to the Court of Justice to declare that EU law precludes a national court from issuing an order requiring an internet service provider (i) to install, in respect of all its customers, in abstracto and as a preventive measure, at the expense of the ISP and for an unlimited period, a system for filtering all electronic communications passing through its services (in particular, those involving the use of P2P software) with a view to detecting the sharing of electronic files containing a work of art (such as audio or video) and, subsequently, (ii) to block the transfer of such files, either at the point at which they are requested or at the point at which they are sent.
 
Please note that conclusions of Advocate General are not binding for the Court and the ruling is still to be issued. Nevertheless, they put once again under the spotlight the problem of the possible role of the ISPs in the fight to online piracy.
 
Do you want to discuss the above? Feel free to contact me, Gianluigi Marino (gianluigi.marino@dlapiper.com)

Posted by Gianluigi Marino on Friday 15 Apr 2011
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