A major win has been scored in Europe against the content industry and several governments who are trying to impose censorship on the internet through ISPs. The European Court of Justice, the highest court in Europe, gave a preliminary opinion which states that no ISP can be forced to filter the internet, especially not enforce copyright.
The advocate general’s preliminary opinion is not the final ruling, but the Court generally does follow his advice. We’re talking about filtering systems that could be imposed upon ISPs by courts, spurred on by the content industry, of course. The advocate general is clear.
“Advocate General Cruz Villalón considers that the installation of that filtering and blocking system is a restriction on the right to respect for the privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights,” Villalón opines, “By the same token, the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights.”
Since this is the highest court in Europe, which bases its rulings on what is, for all intents and purposes, the European constitution, it can’t be overruled by a higher court. If the court adopts the opinion of the advocate general, it would strike a major blow to the content industry, which has been trying to limit the freedom of the web – attempts which are of course greeted with joy by governments the world over.
A government – not the individuals within it, but the whole – innately strives to strengthen and extend its power, and since the internet has proven to be a threat to that power by empowering the people, anything that curtails the freedom of the web is welcomed – silently, but sometimes openly – by governments.
Rick Falkvinge, founder of The Pirate Party, points out what the consequences of this possible ruling are. “This means that Eircom can no longer be forced to eavesdrop on its customers to filter out certain parts, and it means that Danish ISPs can no longer be mandated to censor The Pirate Bay and AllOfMP3. Black Internet in Sweden can give the finger to the court order to block The Pirate Bay. Many, many aggressions from the copyright industry stand to just fall flat on their face,” he details, “You would think that respecting fundamental rights wouldn’t need to go to the highest level, but now it has, and they have been respected.”
The only thing that could classify as a loophole is that laws that require ISPs to censor the web can still potentially be enacted, but they must be tested against a set of very strict criteria. Falkvinge, however, claims this isn’t really a loophole at all, since the criteria are incredibly strict.
This is very good news for internet users in Europe, and a major win for the freedom of information. It also makes it more difficult for governments to get their filthy, inefficient, and chocking grip on the internet.
“The way forward for the copyright industry appears permanently blocked,” Falkvinge concludes, “I hold it as absolutely improbable that they’ll get paragraphs in the referred European Charter of Human Rights that puts the copyright monopoly before the sanctity of correspondence, of personal data, and freedom of information.”
What about ones imposed by governments? That’s the one that needs addressing ’cause it’s already happening in many so-called democratic countries outside of Europe.
Since those would be outside of Europe the European Court of Justice have no jurisdiction there.
Wow, who’d have thought What it would do is add credence to the arguments by those opposing the filters / have them dismantled in countries where they’ve been legislated. And if they don’t outlaw them in Europe you can bet it won’t be long before they’re imposed.
Europe can’t outlaw filtering in countries outside europe, obviously, so what would be the point? We cant make laws for other countries and saying “we have decided that doing what you’re doing in your country is unlawful”. It’s like, say, Sweden would decide to outlaw filtering in the U.S. It’s pointless and arrogant.
As I understand it this new “directive” (or whatever) would also apply to government forced filtering.
Now, officially condemning something that is happening somewhere else is an entirely different matter.
If the government merely instructed ISPs to do this, I think it would, but the ruling clearly states that legislators can enact laws forcing censorship. It just says that currently those laws don’t exist and the copyright industry can’t sue ISPs unless they do.
Essentially, they’ve moved the fight out of the lawyers hands and into the legislature. Money talks there as well, but they’ll have to bribe a lot of people to enact these laws with no guarantee of success. As opposed to the current tactic which is to pay lawyers a bunch of money and threaten to sue everyone. So it is a big win.
Edited 2011-04-15 05:07 UTC
Well, the Danish legislators cannot legally enact laws forcing censorship, since the Danish constitution strictly prohibits any kind of censurship and other preventive measures in regard to information exchange.
(1) For ourselves!!
(2) It makes it a lot harder for other countries(i.e. the U.S.) to ‘fool’ their own electorate into accepting practices that would be or going in the direction of being – a lot more draconian, less free in several ways, and more ‘nanny state'{that’s being polite} than what would be the new norm over the pond in Europe!
As far as I understand (I am not a lawyer or even an experienced person in legal matters) this already covers that, too, unless the filtering has to do with criminal activities or criminal investigation.
[1] democracy != freedom (this mistake is often made. sometimes, you might have more freedom under a dictatorship than in a democracy)
[2] we’ll install a few proxies in europe 🙂
Government imposed blocking is still allowed – in theory. It has to consistant, predicatable and non-discriminatory. Randomly deciding to block pirate bay specifically would probably not fly, by being specific.
In fact in Denmark where ISPs are currently blocking the pirate bay on court order, will also have a consitition forbidding legislation that targets individuals and individual organizations, so it would be impossible to through legislation.
Now, the problem is what they will do when someone draw the child porn card, because will the legislation is technically invalid, we do have a law blocking specific child porn sites, there just no one who wants to sue the government for the right to watch child pornography.
It doesn’t mean Internet filtering is outlawed, it only means that ISPs cannot be forced to do it. They are free to do filtering if they themselves wish to, like e.g. if they get enough money from MAFIAA-like entities to do it.
It is still an important decision given the fact that those aforementioned entities have been trying to force ISPs to do filtering, even when the ISPs themselves do not wish to do it. This releases those ISPs unconditionally from such. Also, it could possibly pave the way for actual outlawing of most Internet traffic, though I highly doubt it would mean all of it.
Expect some ISPs now to actually start advertising that they offer unfiltered Internet access if some of the other ISPs in the same country/area make a deal with MAFIAA et. al. and start filtering. It will become a selling point now that there is no worry about MAFIAA coming after them.
To be fair, ISPs don’t do it at their own will. Because filtering leads to loss of customers and costs money. And I doubt that the copyright enforcement monopolistic unions will be compensating these ISPs for filtering and loss of customers. In fact, there has not been a single instance where an ISP was payed for the filtering expenses.
Of course not as up until not MAFIAA-like entities have just threatened with court. Now that it’s not possible anymore they’ll have to pay ISPs in order for them to start/continue filtering. Some ISPs will most likely take the deal if those aforementioned entities are willing to pay enough, greed is just such a powerful force.
Not exactly, some ISP’s actually market that they do filtering.
But they filter porn and other things which certain people of a certain relgious prefer not to see and I guess also their kids.
Also pretty much every ISP does do filtering from time to time, but for technical reasons. To prevent DOS-attacks, prevent spam from getting out their networks and so on.
Considering the Danish ISP’s have fought in court for years against filtering I don’t think they will apply filtering on their own. That’s effectively prohibited anyway – in Denmark (though the politicians are trying to extend the filtering).
If this ends with a court ruling banning forced filtering it will be in the 11th hour for Denmark, considering the new political course from the “liberal”-conservative government.
You can all thank Belgium for this btw!
We’ve finally done something those pesky Dutch can be jealous of! (I’m looking at you Thom…) 
At least Thom wrote a great article on this important subject 😉
cheers from another “Hollander”
Now chop chop, get back to not forming a government! Us Dutch should annex Flanders anyway, if only for those cute girls with the soft ‘g’
.
Belgium is the world’s first anarchist state
Pretty interesting experiment when you think of it.
Make that “world’s first sort of working anarchist state”
I know it is too early for celebration, but:
Wooooooooohoooooooooooooo!!!!!!!!!
Living in Denmark and all, you see
I know exactly what you mean. Live in Denmark too. This is going straight on my facebook wall. Hopefully setting up a different DNS server will be a thing of the past.
/Uni
Edited 2011-04-16 20:30 UTC
I posted it immediately on my FB-wall. I couldn’t stop myself. I’m looking forward to the day where I won’t need an alternative DNS-server setup to access piratebay
I’m just glad that the ******** here don’t do any filtering. I am free to talk about ********** or ******** without fear of ************.
V is for V*******