Linked by Thom Holwerda on Thu 24th Nov 2011 11:15 UTC
Legal While the US is still pondering SOPA, we just got some absolutely fantastic news out of Europe. The European Court of Justice, the highest court in the European Union, has just ruled that P2P filters installed by ISPs violate the European Directive on electronic commerce as well as fundamental rights [full ruling]. This is a hugely important ruling that effectively protects all member states of the European Union from ever being subjected to ISP filtering and spying.
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RE[2]: Comment by Laurence
by LB06 on Sun 27th Nov 2011 12:02 UTC in reply to "RE: Comment by Laurence"
LB06
Member since:
2005-07-06

Yes, I would like to refer to the judgement text:

Scarlet appealed to the Cour d'appel de Bruxelles (Brussels Court of Appeal), claiming that the injunction failed to comply with EU law because it imposed on Scarlet, de facto, a general obligation to monitor communications on its network, something which was incompatible with the Directive on electronic commerce and with fundamental rights. In that context, the Cour d'appel asks the Court of Justice whether EU law permits Member States to authorise a national court to order an internet service provider to install, on a general basis, as a preventive measure, exclusively at its expense and for an unlimited period, a system for filtering all electronic communications in order to identify illegal file downloads.

In its judgment delivered today, the Court points out, first of all, that holders of intellectual-property rights may apply for an injunction against intermediaries, such as internet service providers, whose services are being used by a third party to infringe their rights. The rules for the operation of injunctions are a matter for national law. However, those national rules must respect the limitations arising from European Union law, such as, in particular, the prohibition laid down in the E-Commerce Directive on electronic commerce under which national authorities must not adopt measures which would require an internet service provider to carry out general monitoring of the information that it transmits on its network

So only preventative, non-specific measures may not be imposed by member states (nor by the EU itself). The court refers specific injunctions against intermediaries to the individual member states.

So the UK ruling seems to be in full compliance with EU law, as is the French HADOPI law. As long as ISPs aren't being used for general, preventative detection and filtering, the prerogative still lies with the member states. These aforementioned laws/injunctions may or may not violate other EU directives, but it doesn't seem to be this one.

Still, the worst that could happen to the web has now been averted (in Europe), so it's still a big win. It's a slap in the face if censorship and the EU has now recognized that it's not the intermediaries who should be made responsible for the behaviour of their customers. If anyone, it should be the police (or other LEOs) policing the web. Not ISPs.

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