EU Commission Pushing For a Censhorship Infrastructure

A Belgium court declares war on culture sharing in 2007

On June 29th, 2007, a first level jurisdiction court in Brussels gave way to a frightening demand from the SABAM (an organization that has a monopoly on royalty collection and distribution in Belgium). The judge ordered the IAP Scarlet to systematically filter all the communications passing through its network in order to ensure SABAM members’ copyright enforcement. This decision could become a new precedent in matter of network filtering and monitoring. All IAPs could be forced to monitor their networks, which would mean nothing less than granting private actors a power to control private communications.

The appeal highlights the contradictions of EU law on Net filtering

Fortunately, the IAP appealed of this decision. Challenging the judge’s reference to EU law¹Directives 2000/31 (e-Commerce), 2004/48 (IPRED), 95/46 (protection of personal data) and 2002/58 (e-Privacy), Scarlet pointed out the internal contradictions of EU law regarding on-line copyright enforcement, and how filtering injunctions run counter to the protection of fundamental rights.

And indeed, the Court of appeal in Brussels decided that EU law on the matter was too diverse and overlapping for its competence. Suspending the proceedings, the Belgian judges devolved the matter to the European Court of Justice (ECJ), asking EU judges the following question: Does EU law allow a national judge to give an injunction for an IAP to filter all the electronic communications passing through its services²For more background on this ruling, see “The “Sabam vs. Scarlet”-case will be continued before the European Court of Justice “, Timelex. Address: http://www.timelex.eu/en/blog/p/detail/the-sabam-vs-scarlet-case-will-be-continued-before-the-european-court-of-justice?

The ECJ will have to clarify the hierarchy of EU legal principles

The main problem at stake lies in finding the right balance between copyright and fundamental rights, such as the freedom of communication and the right to privacy. Historically, the ECJ played a very important role for the protection of fundamental rights at the EU level.

In 1975 the Court, facing a lack of human rights protection in EU law, made an explicit reference to the European Convention on Human Rights in the “Rutili” case. This precedent allowed, through case-law, the introduction of the European Convention on Human Rights within the legislative body of the EU³One may consider the Fundamental Rights Charter signed in 2000 as the final outcome of the movement initiated with the Rutili ruling.. Because of this historical background, the ECJ stands today as the main guardian of fundamental rights among EU’s institutions.

The ECJ could re-affirm that copyright should not prevail over the freedom of communication

The Promusicae ruling in 2008, gives us a positive grasp of how the ECJ might answer the question asked by the Belgium Court of appeal. In Promusicae, the EU judges held that nothing in EU law required that copyright law should prevail over the fundamental right to privacy, and that the principle of proportionality should be respected.

In SABAM vs. Scarlet the matter relates to both freedom of communication and privacy, but chances are the ECJ will stick to its own precedent and declare that copyright should not infringe upon fundamental rights, such as the freedom of communication or the right to privacy. This approach would immediately disqualify the idea of permanent and generalized network filtering.

EU Commission takes a hard line in the war on sharing

However, these hopes must be balanced with the threatening position of another EU institution on network filtering matters: the European Commission. Close to the copyright lobbies, the executive branch of the EU has lately shown a clear intention to step up the repression against the sharing of culture.

In the hearing report of the SABAM case before the ECJ, on January 13th, 2011, the Commission asserts (alone against all the Member States consulted by the court) that the Community law as it stands, authorizes a judge at the national level to promote generalized network filtering, which would amount to a delegation of a power of police to IAPs. While the governments of Belgium, Poland, Netherlands, Finland and Czech Republic advocate that the EU law as it stands forbids the implementation of such a large scale, systematic and intrusive control of their citizens’ Internet communications by private actors, the Commission argues for the opposite.

In the consultation on the revision of IPRED, the Commission’s plan to promote network filtering is re-asserted. Indeed the document states, for example, that Internet companies are in favorable position “to contribute to the prevention and termination of on-line infringements. Clearly, the Commission sees no obstacles to the possibility of granting to private actors such as IAPs a power of police; a power that would allow them to control and limit the freedom of communication of EU citizens for the sake of the copyright industry.

The Commission stands against the interests of EU citizens

This pro-lobby position is further demonstrated in the staff working paper of the Commission on the IPRED consultation. In this document issued in late December 2010, the Commission openly states the lack of neutrality of the information used to draft it. Under the title “annex 2: Analysis and Methodology”, the use of partial sources — emanating from “legal experts from the private sector” — is justified by an alleged lack of information given by Member States. Such a disregard for the accuracy and neutrality of this evaluation, which is supposed to be the basis of the revision of IPRED, is frightening.

The Commission, along with SABAM, supports an Orwellian solution to the alleged problem of culture sharing on the Internet. Refusing to acknowledge that the global dissemination of culture is a huge, undeniable and unprecedented progress in human history, the Commission also ignores the fact that on-line sharing of cultural goods has in fact boosted the consumption of many commercial forms of culture (cinema and concert attending has reached impressive levels)⁴See La Quadrature’s compilation of independent and impartial studies: http://www.laquadrature.net/wiki/Studies_on_file_sharing_eng. The only ones threatened by the sharing of cultural goods on the Internet are the copyright industries, who would like to maintain their control over distribution channels.

What should we do?

We must let the Commission hear our disapproval by answering the IPRED consultation before March 31st.

We must not let copyright lobbies influence European institutions in a way that makes them stand against the public interest. Every EU citizens and NGOs valuing the sharing of culture should urge the European Commission to respect their fundamental rights and to give up on its old-fashioned approach to culture in the digital environment. The Commission needs to be reminded that its role is to stand for the interest of citizens rather than that of copyright industries.

It is at the European Parliament — the only democratic EU institution — that this debate will be settled. Stay tuned…

With the contribution of Gaël Trouvé.