Friday November 25,2011 : Ruling de-fangs draconian regulatory tactic
The frequently considered regulatory tactic of forcing Internet Service Providers to block (read censor) "unacceptable" online gambling sites suffered a setback Thursday when the European Court of Justice ruled that ISPs cannot be forced to collaborate in such an order.
Although the ruling was made in a case involving music piracy, it is in principle applicable to all Internet usage and is therefore a powerful precedent.
The Luxembourg-based ECJ issued its verdict in a case involving Belgian music royalty collecting society SABAM and Belgian telecom operator Belgacom unit Scarlet.
SABAM asked a Belgian court to order Scarlet to install a device to prevent its users from downloading copyrighted works. The court ruled in SABAM's favour and order Scarlet to install such a device. However, Scarlet then challenged the ruling, prompting the Belgian court to seek advice from the ECJ.
"EU law precludes the imposition of an injunction by a national court which requires an internet service provider to install a filtering system with a view to preventing the illegal downloading of files," the ECJ ruled, according to a Reuters news agency report.
"The filtering system would also be liable to infringe the fundamental rights of its [Scarlet's] customers, namely their right to protection of their personal data and their right to receive or impart information."
Legal observers told Reuters that the ruling was a sound decision by the court: "It's a good ruling, it confirms basic principles about the allocation of responsibilities between ISPs and the ISP's users and ensures that ISPs will not be burdened by monitoring obligations," said Thomas Graf, a law firm partner.
Open Rights Group member, Peter Bradwell, said: “Invasive and general surveillance of users is unacceptable. This helps to nail down the limits of powers to curtail people’s freedom to communicate online.”
Numerous governments from Australia to Norway and most recently Belgium have threatened to use ISP blocking tactics against online gambling sites, and have assembled "black lists" that are not always either fair or sensible; the ECJ decision should give most responsible lawmakers pause for thought on the future freedom of the Internet.