The recent judgement from the European Court of Justice (ECJ) on filtering and copyright enforcement has been hailed as a success for the free internet. This decision is significant as it comes since the European Commission, as well as the US government, has moved towards allowing filtering and surveillance in the name of stronger copyright enforcement.
In my opinion the decision takes a relatively balanced position on the enforcement of copyright and the fact that the judgement may set a precedent for the European Commission and the US government when developing copyright enforcement mechanisms can prove very important for the future balance between rights holders and users.
But how relevant is this case outside copyright and other intellectual property rights? Is this an important step for freedom of expression and privacy in general ? My answer is yes and no. Yes, the decision is clearly a step in the right direction, but at the same time no, since the ECJ could have been much stricter in the human rights assessment.
First and foremost, the ECJ upholds the free speech principle of only allowing limitations to freedom of expression through liability in retrospect, and never through preventive measures, since such measures fall under the ban on censorship. It is clear that ISPs may be ordered to intervene to cease an ongoing copyright infringement, but that implementation of filtering mechanisms to prevent future infringement is not compatible with the human rights of the internet users.
The fact that this principle is upheld even in relation to copyright enforcement, which is considered in urgent need of strengthening, hopefully shows that the ECJ will not accept filtering measures in other areas either.
The ECJs good understanding of the technical aspects should also be recognised. Filtering mechanisms will always affect a far larger group of people than the sought-after offenders. It is, in fact, impossible to target specific content/users without scanning everything/everyone. Furthermore, the court acknowledges that a technical system never will be able to distinguish between lawful and unlawful content, as the lawfulness varies in different countries and by different users (a technical system can never know if a user, for example, has a license or is sharing under legal exemptions from copyright).
Understanding of the technical side is critical when assessing what the actual effects of control measures will be in terms of limitations to freedom of expression.
The not so good:
The decision is essentially based on an assessment of the balance between the copyright holders on one hand, and the rights of the ISPs and the internet users on the other hand – in the end favouring the latter. However, what is lacking is a clear statement from the court stating that the suggested filtering, as such, is a limitation to freedom of expression and information, and that this limitation does not comply with internationally accepted standards for limitations to fundamental human rights.
The ECJ had the opportunity to argue in line with the Opinion by Advocate General, Cruz Villalón. Unfortunately did not (however, it did not argue specifically against the Opinion either). The Advocate General clearly stated that, as a limitation to fundamental human rights, the suggested filtering must (1) be encoded in law, (2) serve to protect other rights (or national security), and (3) be proportionate to the need for the measure .
In his assessment, the Advocate General found that the suggested measure did not even pass the first test — that is, being encoded in law. Since there is no law in Belgium explicitly allowing filtering as a limitation to freedom of expression, any filtering measure imposed on an ISP by the state is unlawful.
A similarly strong position by the court would have had a clear message: human rights comes first, particularly since the three part test applies in similar ways to most human rights in most international and national legislatures.
All in all, in this time of SOPA, ACTA and other internet freedom restricting proposals, this is a very welcome decision by the ECJ. Next time we hope they will listen even more to the Advocate General.