lundi, juin 13, 2011

Advocate general's opinion a setback for copyright

Contributed by ALTIUS


In 2010 the Brussels Court of Appeal referred a question to the European Court of Justice (ECJ) on the subject of illegal downloading. The issue arose in a dispute between Scarlet, an internet service provider (ISP), and the Belgian Society of Authors, Composers and Publishers (SABAM), which is the country's main collecting society. SABAM had asked the court to order Scarlet to implement measures that would prevent the latter's customers from infringing the rights of SABAM-affiliated authors by means of illegal peer-to-peer downloading through Scarlet's network (for further details please see "Courts look to ECJ as fight against illegal downloading continues").

The court decided to refer two questions to the ECJ for a preliminary ruling:

"1) Do EU Directives 2001/29/EC and 2004/48/EC, in conjunction with EU Directives 95/46/EC, 2000/31/EC and 2002/58/EC, construed in particular in the light of Articles 8 and 10 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, permit member states to authorise a national court, before which substantive proceedings have been brought and on the basis merely of a statutory provision that: 'They [the national courts] may also issue an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right', to order [an ISP] to introduce, for all its customers, in abstracto and as a preventive measure, exclusively at the cost of that ISP and for an unlimited period, a system for filtering all electronic communications, both incoming and outgoing, passing via its services, in particular those involving the use of peer-to-peer software, in order to identify on its network the sharing of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold rights, and subsequently to block the transfer of such files, either at the point at which they are requested or at which they are sent?

2) If the answer to question 1 is in the affirmative, do those directives require a national court, called upon to give a ruling on an application for an injunction against an intermediary whose services are used by a third party to infringe a copyright, to apply the principle of proportionality when deciding on the effectiveness and dissuasive effect of the measure sought?"


Advocate General Pedro Cruz Villalón's opinion has recently been published and has prompted a storm of speculation about the likely conclusion of the case. The fight against illegal downloading, led by IP rights holders, has had mixed results and the opinion can be seen as a qualified setback for rights holders, rather than a final defeat.

The opinion begins by placing the question in context. Unsurprisingly, the advocate general cites Promusicae, but only to distance himself from that case. He agrees with the Brussels Court of Appeal's view that the jurisprudence in Promusicae does not apply to the central question of Scarlet because the latter concerns an application for a preventive injunction, not a breach a posteriori.

The advocate general's argument points towards a negative answer to the first question. The advocate general begins by examining the characteristics and nature of the measure being sought by SABAM and the system of filtering and blocking that the question proposes. He observes that the filtering and blocking system is very general, and that consequently the cease and desist measure is correspondingly broad from a material, personal and temporal point of view. This assessment is based on the view that the requested measure would:

  • tend towards the creation of a universal, systematic filtering system of all electronic communications passing through Scarlet's network;
  • apply to all users of Scarlet's services, not only its subscribers; and
  • have no time limit.

In the advocate general's opinion, this would amount to:

"[a] new obligation in a general sense, intended to be extended in time to all ISPs... [without] the concrete and individualised characteristics which one would expect of any reaction or riposte to allegedly specific and determinate actions."

The opinion then examines the question of whether the measure would constitute a restriction of the right in Article 52(1) of the EU Charter of Fundamental Rights, which states that:

"Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others."

In particular, the question arises as to whether the measure would restrict the rights protected by Articles 7, 8 and 11, which respectively relate to the secrecy of electronic communications, the protection of personal data and freedom of expression and information.(1)

The opinion considers whether an internet protocol (IP) address can be deemed personal data. It might be argued that this question has been clearly answered in the past. However, the advocate general notes that the ECJ has addressed this issue only in the context of names and personal information linked to IP addresses; it has not examined whether an IP address itself can be regarded as personal data. He states that "an IP address is personal data to the extent that it allows someone else to identify an internet user by referring to a unique personal number or any other proper element", thus following the definition of 'personal data' in the EU Data Protection Directive (95/46/EC), which excludes generalisations and requires an analysis of the facts in question. The advocate general limits his opinion to a statement that the requested blocking and filtering system, "notwithstanding the technological uncertainties raised above, is unquestionably likely to infringe the protection of personal data".

As far as freedom of expression is concerned, the advocate general observes that "websites have greatly improved public access to news stories, and have generally made it easier to communicate information". He also refers to the jurisprudence of the European Court of Human Rights on the "multiplying effect" of the Internet and its effect on assessing whether a breach of freedom of speech has occurred. It is stated to be "beyond all doubt" that the requested system, particularly its blocking effect, would infringe the freedom of communication.

Having found evidence of infringement of Articles 7, 8 and 11 of the charter, the opinion goes on to consider whether such infringements are permitted under Article 52(1). It notes that the protection of copyright and associated rights falls under the "protection of the rights and freedoms of others" mentioned therein.

However, the advocate general underlines the conditions on which the charter's rights and freedoms may be restricted, noting, in particular, that this may be done "when required by law". The advocate general concentrates his analysis on this condition, considering that it is not met in the present case and that, consequently, it is unnecessary to review the other two conditions. The advocate general observes that according to the settled case law of the European Court of Human Rights, a limitation of the charter's rights and freedoms would be acceptable only if based on a law that is accessible, predictable and clear. In the advocate general's view, this is not the case here: setting up a filtering and blocking system would constitute a "new obligation" for ISPs and could not be considered as foreseeable in view of the legal basis invoked by SABAM. Moreover, the creation of a filtering system would not come with specific guarantees in respect of the protection of personal data and the secrecy of communications, and there would be no opportunity for users to object to the blocking of a certain file or to challenge Scarlet's grounds for blocking it. Thus, the advocate general concludes that there would be insufficient legal grounds to support the injunction requested by SABAM.

The advocate general's opinion recommends that the ECJ answer the first question in the negative; thus, the court would not be required to answer the second question.


Contrary to some media interpretations, it is wrong to claim that the advocate general considers the protection of privacy and personal data to take clear precedence over copyright. Rather, the opinion criticises the overly general nature of the measures being sought and the legal basis of the request. However, some limitation is allowed, provided that it meets the conditions laid down in Article 52(1) of the charter. The advocate general's conclusions in Scarlet appear to have been partly influenced by the fact that the filtering and blocking measures would inevitably affect legitimate as well as illicit communications.

Most reasonable commentators agree that the fight against illegal downloads cannot simply be played out before the courts: well-considered legislation must strike a balance between the rights and interests of the various organisations and groups affected by the difficult issue of illegal downloading.

For further information on this topic please contact Olivier Vrins or Virginie Fossoul at ALTIUS by telephone (+32 2 426 1414), fax (+32 2 426 2030) or email ( or


(1) Although the question referred to the court concerned Articles 8 and 10 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, the advocate general considered it appropriate to take the corresponding provisions of the EU Charter of Fundamental Rights into account.