Scarlet v. Sabam case: analysis by advocate general

The Court was called upon to tell the national court explicitly whether, under European Union law, a national court is permitted to adopt a measure, ordering an internet service provider to introduce a system for filtering and blocking electronic communications.

Scarlet and ISPA, and also the Belgium, Czech, Italian, Netherlands, Polish and Finnish Governments considered, in general, that Union law precludes the adoption of a measure such as the one requested. The Commission, for its part, considered that, although the directives at issue do not, in themselves, preclude the introduction of a filtering and blocking system such as the one requested, the specific rules for implementing it, however, do not comply with the principle of proportionality. It therefore considers, in essence, that the national court of first instance has misinterpreted the requirements of the principle of proportionality, and that the national legal provisions in themselves cannot be criticised.

The national court asked whether a Member State is permitted ‘to order an ISP to introduce, for all its customers, in abstracto and as a preventive measure, exclusively at its own cost 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 transfer of such files, either at the point at which they are requested or at which they are sent’, and all that in the form of an injunction.

The system to be implemented is a dual system. First, it must filter any communication of data passing through Scarlet’s network, in order to detect or, if preferred, to isolate those indicating an infringement of copyright. Secondly, apart from filtering, the system must block communications which actually involve an infringement of copyright, whether ‘at the point at which they are requested’ or ‘at which they are sent’. Since the effectiveness of the filtering system is a condition of the effectiveness of the blocking system, those two operations, although closely linked, are very different and therefore have different consequences.

The fact is that it is impossible to describe the specific manner of operation, modus operandi, of the filtering system and of the blocking mechanism which the requested measure required to be introduced. The requested measure imposed on Scarlet and more widely ISPs in general, a permanent and perpetual obligation to examine, test, introduce and update a filtering and blocking system defined exclusively according to its results in the light of the desired objective of protecting intellectual property rights. The communications subject to filtering and, if appropriate, blocking, are unspecified. It is impossible to determine whether the monitoring should apply to all communications or only to those effected by means of peer-to-peer software, but it seems, however, that the monitoring to be implemented must, in order to produce effective results, be systematic and universal.

There is some difficulty in making a specific evaluation of the impact of a filtering and blocking system on the right to protection of personal data. An initial difficulty consists in identifying the personal data at issue, since they are not clearly identified, except as regards ‘IP addresses’. The technological neutrality proclaimed by SABAM means, in fact, that it is not possible, a priori, to determine whether the system to be introduced involves processing personal data. A fortiori, it is not possible to determine whether it involves the collection and resolution of IP addresses. A second difficulty consists in determining whether IP addresses constitute personal data. IP address may be classified as personal data inasmuch as it may allow a person to be identified by reference to an identification number or any other information specific to him.

The requested measure, in that it requires the introduction of a system for filtering and blocking electronic communications such as described above, may adversely affect enjoyment of the rights and freedoms protected by the Charter and must therefore be classified, in relation to the users of Scarlet’s services and more generally users of the internet, as ‘limitation’ within the meaning of Article 52(1) of the Charter. From the point of view of the users of Scarlet’s services and of internet users more generally, the filtering system requested is designed, irrespective of the specific manner in which it is used, to apply systematically and universally, permanently and perpetually, but its introduction is not supported by any specific guarantee as regards in particular the protection of personal data and the confidentiality of communication.

The necessary conclusion is therefore that the national law provision at issue cannot be an adequate legal base on which to adopt an injunction imposing a filtering and blocking system such as that requested in the main proceedings. In conclusion, the advocate general proposed that the Court answer the question referred by the cour d’appel de Bruxelles for a preliminary ruling as follows:

Directives 2001/29/EC and 2004/48/EC, in conjunction with Directives 95/46/EC, 2002/58/EC and 2000/31/EC, interpreted in the light of Articles 7, 8, 11 and 52(1) of the Charter of Fundamental Rights of the European Union having regard to Articles 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, are to be interpreted as precluding the adoption by a national court, on the sole basis of a statutory provision providing that ‘[the competent 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 ‘[internet service provider] to introduce, for all its customers, in abstracto and as a preventive measure, exclusively at the cost of [the latter] 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’.