Piracy Laws Infringe Human Rights

Internet service providers that filter or block traffic to prevent the illegal downloading of software, music and films may themselves be breaking the law, according to one of Europe’s top legal advisers.

Advocate General Pedro Cruz Villalón, an adviser to the European Court Of Justice, told its judges that filtering and blocking systems is a restriction on the right to privacy of communications and the right to protection of personal data.

Both rights are protected under the Charter of Fundamental Rights, explained an ECJ statement detailing Cruz Villalón’s opinions.

Apart from being a setback to various national efforts to cut Internet piracy by blocking access to rogue websites, Cruz Villalón’s view also casts a shadow over the Belgian courts’ decision to force an ISP to block its users from sending copyright-infringing content.

Cruz Villalón says the decision was incompatible with EU laws on privacy, data protection and freedom of information.

His opinions were published as part of an ongoing dispute between Belgian ISP Scarlet and SABAM, a rights holder group.

The case dates back to 2004, when SABAM won a judicial declaration finding that people had used Scarlet’s Internet services to exchange copyrighted music, particularly via peer-to-peer technology.

Three years later another judgment ordered Scarlet to stop its customers from infringing on copyright in this way. Scarlet then took the matter to the Belgian Court of Appeal, which asked the ECJ for guidance.

The opinions Cruz Villalón expressed to the ECJ are not legally binding, as advocate generals only act in an advisory capacity, but ECJ rulings do tend to follow that advice.

Those who oppose the more rigorous enforcement of copyright on the Internet will no doubt seize on Cruz Villalón’s words. It could well mean that the UK’s Digital Economy Act, which grants the government or courts powers to force ISPs to block piracy websites, is also illegal.

UK ISPs British Telecom and TalkTalk have already forced a judicial review of the DEA, with the ruling expected some time in the next two months.

The ISPs say the new law was “hastily constructed” and “rushed through at report stage” without due consideration of the implications or consultation with the interested parties that would be affected.