Recent European Litigation on the Legality of Internet Filtering for

Copyright Reasons

Darius Whelan, University College CorkGlobal Congress on IP and the Public Interest,

Washington, August 2011

• E-Commerce Directive o Art. 12 – mere conduits o Art. 15 – no general obligation to monitor o Recital 45 – injunctions

• Copyright InfoSoc Directive o Recital 16 - without prejudice to E-Commerce Directiveo Art. 8(3) - injunctions against intermediaries

• Enforcement Directive o Art.11 injunctions

• Framework Directive 2009 o Respect fundamental rightso Due Process / judicial review

2

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

4

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

6

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

8

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

10

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? Couldn’t files have been downloaded by person not a party to contract?

11

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