Court Orders ISP to use Content Filter: SABAM v SA Scarlet [Belgium]

A Belgian court has ordered an internet service provider to use filtering technology on its systems to root out copyright-infringing content. In SCRL Societe Belge Des Auteurs v SA Scarlet (No. 04/8975/A) the ISP Scarlet (formerly Tiscali) was found liable in 2004 for the unauthorised exchange of music files through its service and, in a judgment made available this week, the Belgian Court of First Instance has ordered Scarlet to put into place blocking and filtering mechanisms to stop its users sending or receiving music through peer-to-peer applications.

The Court had been understandably reluctant to enforce its 2004 injunction against Scarlet without knowing if an effective technical solution existed so it ordered an expert evaluation. The experts looked at various solutions – including the Audible Magic application “CopySense Network Appliance” – and found that there were affordable measures Scarlet could take to block P2P on its network without affecting other legitimate internet exchanges.

Scarlet now has six months to implement a suitable solution, which the Court said should cost no more than €0.50 per month per user and was therefore “not excessive”.

Aside from the slightly-uncomfortable notion of a court making technical and commercial evaluations of IT products, it is perhaps most surprising that a European court has ordered a telecoms provider to explore the information in its systems at all. The court apparently did not fully consider the “Mere Conduit” protections for ISPs (known in the US as “Safe Harbor”) though it took pains to distinguish this filtering and blocking order from any type of “surveillance” which would have been contrary to EU law.

This decision will be seen as a foothold for music companies in its fight against P2P file sharing, but most of the big questions – especially those regarding secondary liability, telecoms’ immunity and free speech – remain unanswered. IF Belgium has correctly implemented the underlying EU laws and this court has correctly interpreted those laws, and other EU countries have similar correct implementations, then this decision may be followed – though not as a precedent – elsewhere within the EU. This is, however, a big IF and, in any case, Scarlet may yet appeal the decision.