recent european litigation on the legality of internet filtering for copyright reasons

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Darius Whelan University College Cork Global Congress on Intellectual Property and the Public Interest American University Washington College of Law Washington, DC, August 2011

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  • 1. Recent European Litigation on the Legality of Internet Filtering for Copyright Reasons
    Darius Whelan, University College Cork
    Global Congress on IP and the Public Interest, Washington, August 2011
  • 2. E-Commerce Directive
    • Art. 12 mere conduits
    • 3. Art. 15 no general obligation to monitor
    • 4. Recital 45 injunctions
    Copyright InfoSoc Directive
    • Recital 16 - without prejudice to E-Commerce Directive
    • 5. Art. 8(3) - injunctions against intermediaries
    Enforcement Directive
    • Art.11 injunctions
    Framework Directive 2009
    • Respect fundamental rights
    • 6. Due Process / judicial review
    2
  • 7. EMI v UPC (2010)
    Internet Piracy devastating music business
    Privacy not infringed. IP addresses just a set of numbers.
    Copyright is private property right
    Irish Act (2000) only permitted orders re removal but UPC is mere conduit
    Art.15 no general obligation to monitor not relevant
    Did not grant order due to wording of Irish Act
    Previous Irish three strikes settlement still in place
    3
  • 8. 4
  • 9. Scarlet v Sabam (2011)
    5
    Opinion of Advocate General. Not binding
    Very wide Belgian court order in issue
    Order unduly restricts privacy / personal data
    Law should be accessible, clear and predictable
    Filtering and blocking not accompanied by adequate safeguards
  • 10. 6
  • 11. R. (BT and TalkTalk) v SS BIS (2011)
    Digital Economy Act 2010
    Role of ISPs passive
    Mere conduit issue ISPs were not being made liable for the info. transmitted
    Proportionality? Parliament had struck balance
    Code could deal with library hot-spots, etc.
    IP addresses are personal data
    Derogation under E-Privacy Directive right to property
    No reference of questions to ECJ
    7
  • 12. 8
  • 13. Newzbin 2 case (2011)
    9
    Order to block access to Newzbin site
    Contrasted with Scarlet v Sabam
    Art. 1 First Protocol ECHR property rights
    Art. 10 ECHR freedom of expression
    Apply copyright legislation in manner which accommodates freedom of expression
    Deference to Parliament
    Claimants property rights clearly outweighed FoE rights of newzbin users, and even more clearly outweighed FoE rights of operators of newzbin
  • 14. 10
  • 15. Conclusion
    Lack of clarity re some key issues in European law, e.g. ambiguity about due process in Framework Directive; Promusicae balance unclear
    Due Process arguments have potential. Also art.6 ECHR.
    Note relationship property rights Art.1 First protocol and other rights such as privacy and FoE. More nuance in newzbin 2 case on this apply legislation in manner which accommodates FoE
    Can internet users waive fundamental rights? Is it proportionate? Are customers aware of click-wrap terms? Couldnt files have been downloaded by person not a party to contract?
    11
  • 16. 12
    Courts approaches affected by attitudes. EMI v UPC anger at copyright violations. Scarlet More concern about internet users rights
    Scarlet case very successful from human rights perspective, but very much affected by facts of case
    Orders against ISPs inherently questionable result in over blocking and under blocking; users can circumvent blocking systems; orders interfere with net neutrality

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