On 28 January 2010, the Brussels Court of Appeal issued a decision in a case brought by Sabam, a copyright collecting society, against Scarlet, an Internet service provider (ISP). The appellate court decided to submit a request for a preliminary ruling on several questions to the European Court of Justice (ECJ) and refrained from ruling on the merits of the case.
Sabam had requested a court order obliging Scarlet to take measures against users who unlawfully download copyright-protected material. In a judgment of 29 June 2007, the president of the Brussels Court of First Instance upheld Sabam's claim. Scarlet appealed this decision to the Brussels Court of Appeal.
This case deals with the question of whether the national courts can impose certain measures on ISPs for infringing acts committed by users. More specifically, it raises the question of how to reconcile the enforcement of intellectual property rights, on the one hand, with the rights (exemption from liability) and obligations (respect for users' right to privacy) of ISPs.
The appellate court noted that in Promusicae, the ECJ answered this question by requiring:
- the Member States, when implementing a directive, to strike a "fair balance";
- the national courts, when asked to rule on implementing measures, to interpret their national law in accordance with Community directives and not to interpret these directives in a way that could conflict with fundamental rights or other general rules of Community law, such as the proportionality principle.
The Brussels Court of Appeal noted, however, that the facts of this case are different as Promusicae involved a concrete (or a posteriori) invasion of privacy while the invasion cited in Sabam v. Scarlet is theoretical (or a priori). The court thus decided that it is necessary for the ECJ to re-examine the issue of whether the directives (i.e., the directives on copyright, the enforcement of intellectual property rights, privacy rights, and electronic commerce) authorise the national courts to order an ISP to put in place with respect to Internet users - as a preventive measure, at its sole expense and for an indefinite period of time - an electronic communications filtering system with a view to identifying the circulation of files containing allegedly copyright-protected material and subsequently blocking the transfer of such files.
In the event this question is answered in the affirmative, the appellate court wishes to know if it can apply the principle of proportionality when asked to rule on the effectiveness and deterrent effect of the requested measures.
These questions call for the following comments:
- the appellate court's restrictive wording indicates a certain reluctance on its part to impose binding measures on ISPs;
- the court also broaches, albeit indirectly, the subject of ISPs' exemption from liability as it refers inter alia to the Electronic Commerce Directive. There is thus an echo of the request for a preliminary ruling submitted by the High Court of Justice (England and Wales) on 12 August 2009 in the matter of L'Oréal v. eBay (case C-324/09).
We hope the ECJ will provide clear answers to these questions so as to help resolve the many disputes currently pending between the proprietors of intellectual property rights and ISPs.
