posted by Thom Holwerda on Thu 24th Nov 2011 11:15 UTC
IconWhile 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.

The origins of this ruling lie in Belgium. The Belgian version of the RIAA, SABAM, had sued Belgian internet provider Scarlet because the ISP's users were downloading copyrighted content without paying royalties. The President of the Tribunal de première instance de Bruxelles (Brussels Court of First Instance) then ordered Scarlet to install a filtering system to monitor the internet traffic of its subscribers.

Scarlet didn't like this and appealed, and argued before the European Court of Justice that such a filtering system is incompatible with the Directive on electronic commerce and with fundamental rights. Today, the European Court of Justice ruled in full agreement with Scarlet - this has to be one of the clearest and most straightforward rulings I've ever seen. The Court of Justice doesn't mince any words here.

There are two elements to the ruling. First, imposing such a filtering system would hinder Scarlet in freely conducting business, a violation of the Directive on on electronic commerce. This is the practical side of the ruling.

"In the present case, the injunction requiring the installation of a filtering system involves monitoring, in the interests of copyright holders, all electronic communications made through the network of the internet service provider concerned. That monitoring, moreover, is not limited in time," the Court of Justice states, "Such an injunction would thus result in a serious infringement of Scarlet's freedom to conduct its business as it would require Scarlet to install a complicated, costly, permanent computer system at its own expense."

Other than this practical side, the ruling also has a philosophical side which deals with the implications such a filtering system would have for fundamental rights such as privacy.

"What is more, the effects of the injunction would not be limited to Scarlet, as the filtering system would also be liable to infringe the fundamental rights of its customers, namely their right to protection of their personal data and their right to receive or impart information, which are rights safeguarded by the Charter of Fundamental Rights of the EU," the Court continues.

"It is common ground, first, that the injunction would involve a systematic analysis of all content and the collection and identification of users' IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data," the Court further clarifies, "Secondly, the injunction 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."

The Court concludes, therefore, that ISP-side filtering systems would not strike a fair balance between IP protection on one side, and "the freedom to conduct business, the right to protection of personal data and the right to receive or impart information" on the other.

The European digital rights organisation EDRI is obviously pleased with the ruling. "This result is hugely important, as it protects the openness of the Internet," EDRI states in a press release, "The alternative would have been a decision which would ultimately have put all European networks under permanent surveillance and filtering. This would have had major negative consequences for both fundamental rights and the online economy in Europe."

It's interesting to see how many parts of Europe are starting to take serious stands against the draconian, anti-freedom laws and initiatives the United States is trying to impose upon the rest of the world. Just this week, the Dutch minister of foreign affairs refused to declassify all the documents and negotiation details surrounding ACTA - as a result, the Dutch Lower House accepted a motion to block all debates and talks in the Lower House until all materials related to ACTA are declassified and made available to the public. Until then, ACTA will not even be discussed in the Lower House, and thus, will not be accepted.

Meanwhile, the European Parliament is taking a stand against SOPA, and fighting to make unconditional net neutrality - as codified first by Chile and second by The Netherlands - part of European Union law. And now we have the highest courts on the side of freedom of speech and fundamental rights as well?

Only a few months ago I thought the fight was pretty much over, and that we, sanity, had lost. Now - things ain't looking so dire any more. The tables are turning.

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