The case undermines previous thinking on how the E-Commerce Directive and the Copyright Directive work together, said Struan Robertson, a technology lawyer with Pinsent Masons, the law firm behind OUT-LAW.COM.
"The Copyright Directive says copyright owners should be able to get a court order against intermediaries whose services are used for piracy – which was the argument used in this case; but that Directive also says its provisions should not prejudice the E-commerce Directive," said Robertson. "That law says ISPs generally are not responsible for the activity of their customers and also that member states must not impose any general obligation on ISPs to police their services for illegal activity."
The Court of First Instance in Belgium made the controversial ruling against ISP Scarlet Extended. It said that the ISP must block or filter out traffic on its network which it thinks is copyright-infringing material. It must introduce suitable 'technical instruments' to do this within six months.
It is believed to be the first time that a European court has ruled that an ISP must block such traffic. ISPs have until now been granted similar status to a phone company or a post office in that they are a conduit for information but are not responsible for the contents of that information, just as the post office is not responsible for the contents of a letter or package.
Author and composer representative body the Belgian Society of Authors, Composers and Publishers (SABAM) brought the case against Scarlet.
"A lot of Internet users are massively downloading copyrighted works, by way of P2P software, without the authors, composers and publishers having authorised it or having been remunerated," said a statement from SABAM. "If all Belgian Internet access providers would adopt the technical measures proposed by the expert so that P2P software could no longer be used for exchanging copyright works, this would put an end to the illegal traffic as Belgium is concerned."
The body said that the duty imposed by the court is not a general obligation to monitor the network.
International music industry lobby group the International Federation of the Phonographic Industry (IFPI) said that it hoped the ruling would be replicated across Europe.
"This is a decision that we hope will set the mould for government policy and for courts in other countries in Europe and around the world," said IFPI chief executive John Kennedy. "This is an extremely significant ruling which bears out exactly what we have been saying for the last two years – that the internet’s gatekeepers, the ISPs, have a responsibility to help control copyright-infringing traffic on their networks. The court has confirmed that the ISPs have both a legal responsibility and the technical means to tackle piracy."
The court ruled that ISPs are technically able to screen out such material, and ordered that Scarlet do so within six months.
The court put the case on hold in 2004 while it sought expert advice on the technical feasibility of blocking material. The court's expert said that there were 11 ways in which the material could be blocked, seven of which were applicable to Scarlet's network, according to SABAM.
The ruling could influence courts in other EU member states, though it will have been based on the particular Belgian laws which implemented the E-commerce and Copyright Directives, so its impact could be limited.
Robertson said that the ruling prioritises the Copyright Directive over the E-commerce Directive in a manner that will shock the ISP industry. "These laws were designed to complement each other, but there was always a risk of a collision like this."
OUT-LAW had not seen a copy of the judgment at the time of writing.
