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November 28, 2011 - Updated on January 20, 2016

EU court says Internet filtering violates freedom of information


In a landmark decision on 24 November, the Court of Justice of the European Union has ruled that generalized Internet filtering violates the fundamental rights of European citizens including the right to the free flow of information online. Protection of copyright cannot be protected at the expense of the protection of other basic rights such freedom of information and privacy, the court said.

“We welcome the Court of Justice’s interpretation of EU directives, because it stresses that freedom of information is fundamental and it protects European citizens from abusive copyright protection legislation,” Reporters Without Borders said. “European governments must take note of this decision and must abandon plans for Internet filtering legislation.

“European parliamentarians, who are to discuss EU adoption of the ACTA by the end of December, should also heed this ruling, which says a balance must be struck between the protection of copyright and the protection of fundamental rights including freedom of information and the confidentiality of personal data.”

Reporters Without Borders added: “We also hope that this ruling will have an impact outside Europe, especially in the United States, where the draconian Stop Online Piracy Act is currently under consideration.”

The court issued its interpretation at the request of a Brussels appeal court in an action that SABAM (the Belgian Society of Authors, Composers and Editors of Musical Works) brought against Scarlet Extended, an Internet Service Provider, over Scarlet’s refusal to use filtering or blocking to prevent illegal downloading of music to which SABAM has the copyright.

The court was asked to decide whether EU directives allow member states “to order an ISP to install, 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 (...) in order to identify on its network the movement 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.”

The Court of Justice ruled that such a generalized system of surveillance is not permitted. It said national courts must respect a directive “which prohibits national authorities from adopting measures which would require an ISP to carry out general monitoring of the information that it transmits on its network.”

Paragraph 52 rules that such a filtering system “could potentially undermine freedom of 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.”

Paragraphs 43 and 44 of the ruling note that while the right to intellectual property must be protected, “there is however nothing (...) to suggest that that right is inviolable and must for that reason be absolutely protected.” On the contrary, its protection “must be balanced against the protection of other fundamental rights.”

Paragraph 45 adds: “National authorities and courts must strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures.”

Paragraphs 48 and 49 rule that forcing an ISP to install a complicated, costly filtering system would violate the requirement to strike a fair balance between protection of intellectual property rights and the ISP’s freedom to conduct a business.

The court has thereby recognized the impact of Internet filtering on freedom of expression and freedom of information. This is a crucial step forward for the defence of Internet freedom as all EU member states will have to accept this interpretation.

Hailing the court’s ruling, French MEP Françoise Castex said it had “applied the brakes to the practice of filtering that prevails in Europe,” a practice which, she said, “sacrifices fundamental freedoms on the altar of intellectual property.”