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Landmark digital free speech ruling at European Court of Justice

(ARTICLE 19/IFEX) - 24 November 2011 - The Court of Justice of the European Union (CJEU) delivered a landmark case for protecting free speech in the fight against online piracy. In a decision issued today on the Scarlet Extended SA v SABAM case, the Court stated that web filtering systems used to prevent illegal downloading on peer-to-peer networks was incompatible with fundamental human rights. ARTICLE 19 welcomes the decision as a victory for freedom of expression online.

Amid growing pressure from copyright holders to police the Internet, the CJEU's decision is a reassuring move that puts further into question draconian measures such as the "graduated response" provisions in the UK Digital Economy Act, which ARTICLE 19 has previously criticised. It also draws the line beyond which private enforcement of intellectual property rights cannot go.

"The Scarlet decision is a victory against private censorship on the Net," said Agnes Callamard, Executive Director of ARTICLE 19. "It signals that private interests cannot trump the rights of more than a half a billion EU citizens to receive information online, free from massive surveillance", continued Callamard.

The Court said that EU law did not allow states to require internet service providers to install filtering systems to prevent the illegal downloading of files. The Court considered that such a filtering system would effectively require ISPs to monitor the information that it transmits on its network, which is prohibited under EU law.

The Court made it clear that intellectual property rights as enshrined in the EU Charter of Fundamental Rights are far from absolute and that there was nothing whatsoever in the Charter or the Court's jurisprudence to suggest that such rights must be protected at all costs (para. 43).

The Court said today that the injunction sought by SABAM "could potentially undermine freedom to receive information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications."


In 2004, SABAM, a Belgian management company representing authors, composers and editors, had sought an injunction against internet service provider Scarlet Extended SA. SABAM demanded that Scarlet install technical measures to make it absolutely impossible for its customers to send or receive files containing musical works using peer-to-peer software without the permission of the rights holders. According to SABAM, this was the only way to bring alleged copyright infringements on Scarlet's networks to an end. The Belgian Court of First Instance granted the order but Scarlet refused to install the filtering system.

The Brussels Court of Appeal then referred the matter to the CJEU in January 2010 asking whether the filtering system requested by SABAM was compatible with EU law and fundamental rights, including the right to freedom of expression and the right to privacy.

Read ARTICLE 19's comments on the Digital Economy Act 2010:
europe_article19_skeleton_argument_on_behalf_of_consumer_focus.pdf (187 KB)

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