European court ruling against web blocking - what this means for the UK

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Last week, the European Court of Justice ruled on a case between Belgian copyright association SABAN and the ISP Scarlet. SABAM, who collect license fees for musical recordings, had been demanding that the ISP implement technology to detect when its users were filesharing recordings they had rights over, and block them. This would have involved snooping on all users' communications, and, like all web-blocking technologies, would have resulted in any number of false positives whilst failing to deter serious infringers.

Common sense is rare in this area, so it was refreshing to hear the ECJ come out on the side of the ISP and the general public- it ruled that such a filtering system would be a gross intrusion on the privacy of users, violating their right to data protection and freedom of speech. This strikes a blow against any moves to site blocking in the EU. The court commented:

It is true that the protection of the right to intellectual property is enshrined in the Charter of Fundamental Rights of the EU. There is, however, nothing whatsoever in the wording of the Charter or in the Court's case-law to suggest that that right is inviolable and must for that reason be absolutely protected. [On the other hand], the filtering system would [..] be liable to infringe the fundamental rights of its customers, namely their right to protection of their personal data and their right to receive or impart information, which are rights safeguarded by the Charter of Fundamental Rights of the EU

While it remains to be seen what the implication is for domestic cases such as Newzbin2, it is clear that the ECJ's ruling puts pressure on the UK government and courts. The fact that web filtering was ruled to be incompatible with the eCommerce Directive has shown how damaging it can to business. Equally the judgement emphasises "that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the right to receive or impart information, on the other." It is clearly time that the Government lives up to its promise to repeal the part of the Digital Economy Act regarding site blocking, and put a hold on further injunctions calling for Internet censorship.

Pirate Party UK's Culture and Media spokesperson Andrew Robinson said:

While this particular case is a victory for those of us who see the purpose of the law to favour freedom and privacy over propping up outdated business models, it doesn't address the fundamental problem that all our copyright law is based on a set of assumptions that simply don't apply anymore. The Pirate Party wants a copyright system that rewards content creators fairly, while recognising that the landscape has changed, and copying is now an individual freedom, not a business proposition. "

The Scarlet verdict is to be welcomed, but shows that laws designed to deal with tape cassettes and photocopiers are now being stretched to the point of absurdity. The sooner we make new laws that are fit to purpose, the sooner we'll all know where we actually stand, and the sooner businesses, both old and new, will be able to thrive on the net.