AG’s Opinion in Scarlet v. SABAM: Impact on Digital Economy Act

The debate over file sharing is increasingly being presented as a stand off between property rights and civic rights, as the new opinion from the Advocate General, adviser to the Court of Justice of the European Union (CJEU), now demonstrates. All the while countries rush ahead with innovative measures to clampdown on infringement. Getting a court order to reveal an alleged infringer’s identity was never going to be the most economical and effective way to address mass infringements. Understandably, rights holders want to take it further by obliging ISPs to filter and block sites that facilitate infringement. But the nature of the internet, as a complex communications hub, is such that any limitation of its functions immediately can be seen as affecting an individual’s right to freedom of expression.

Freedom of Expression
This right is deeply entrenched in law with the European Convention of Human rights (in the UK with the Human Rights Act) and now the EU’s version the Charter of Fundamental Rights.

That is not to say it is an absolute right, rather, it is expected that countries are able to encroach on this when needed.
However the Convention and Charter regulate how this is done and for how long.

One of the main controls is to ensure any encroachment has a solid legal basis (see article 52 (1) ).

Another consideration is that the inroad into an individual’s freedom of expression should be proportionate to the outcome sought (don’t use a sledge hammer to crack a nut).

Practically speaking, with the onset of the Lisbon treaty the CJEU must now consider the Charter to have the same validity as any other EU treaties, meaning when they address a problem, which affects the single market for example and the application of EU laws, they must also consider the effect on the Charter.

It is precisely within this frame that the AG last week considered a measure taken by a Court in Belgium to address illegal file sharing.

Scarlet v SABAM
The SABAM is the Belgian equivalent of PRS, a royalty collecting agency representing music artists.

They successfully applied to the lower court of Bruxelles for an injunction against an ISP named Scarlet.

The scope of the injunction was to monitor, identify, filter and block communications where illegal file sharing was taking place, the duration of the injunction was indefinite and the cost of managing this was to be borne by the ISP entirely.

Scarlet appealed against the legality of this injunction to the Court of Appeal of Bruxelles, who deferred the question to the CJEU.

The particular question put to the CJEU was whether the domestic law relied upon by the judge, set in the context of the Charter and other EU laws including data protection, could legitimise granting such a far-reaching remedy.

Important to note here the lower Court relied upon a domestic law, which allows it to give an order to cease copyright infringement. But even more interesting was that this law was in itself a transposition of EU law (article 8(3) of directive 2001/29 and article 11 of directive 2004/48).

So the question essentially touched on not only whether Belgian law could warrant such an injunction but also whether the underpinning EU law could support this type of action.

The AG’s Opinion
The AG thought not (see in particular section E  of Opinion; currently the opinion is only available in French but can be auto translated by Google Translate ) For the AG, under the Charter, the quality of any law should be sufficiently precise that others can be certain of its effects and adjust their behaviour accordingly. Using the words of the European Court of Human Rights the AG said the law should be “formulated with sufficient precision […]  to foresee […] the consequences which a given action may entail” (para 94)

To expand further on this notion, the AG referred to a Turkish case brought to the European Court of Human Rights where the law in question gave the power to chief prison officers to intercept and retain prisoner correspondence if the officer thought the contents were “embarrassing” (Footnote 85 of the Opinion). It was thought such a law did not indicate with sufficient clarity the scope and conditions for the exercise of this power by those authorities.

So details are crucial if a law is to be in line with the Charter, primarily, so people can foresee the consequences.

In this case, from the point of view of Scarlet, the adoption by the lower court of this injunction was an extraordinary measure, both difficult to foresee and due to the serious economic consequences smacked more of being arbitrary.

The ISP was demanded to achieve the result of blocking illegal file sharing but the solution of how this could be done was completely innovative.

Also the injunction gave no guarantee of how subscribers’ personal data would be protected. Nor did it provide any recourse for appeal by affected subscribers.

On this basis, the AG concluded the national law and by implication EU law could not have given authorisation for such a measure. Essentially there was no solid basis in law for this remedy when read in light of the Charter.

Digital Economy Act
If the Court decides to follow this Opinion then other EU countries who are rolling out new laws to combat internet copyright infringement may take more time to stamp out the details of their laws rather than handing over general powers to the judiciary or executive.

How may this affect the UK and the Digital Economy Act?

The UK is obliged to check compatibility with the Human Rights Act (HRA) when passing any new law.

Lord Mandelson okayed the Digital Economy Bill in the Commons but when the bill reached the House of Lords Joint Committee of Human Rights, concerns were raised about so-called ‘skeletal measures’ where powers are granted under the Act and the detail worked out in secondary legislation.

In fact, the Joint Committee said it was “impossible [to] assess fully” whether the Bill is compatible with the HRA due to the lack of detail. Not a good sign. (see in particular 1.28).

One such example of a ‘skeletal measure’ is Article 18 of the Act which allows for the secretary of state to introduce ‘technical measures’ to limit access to the internet for alleged infringing subscribers.

This particular measure is currently under judicial review by the high court but this SABAM Opinion could be the tipping point for a declaration of incompatibility with the Human Rights Act, or maybe there is a referral to the CJEU in the waiting.

Luckily for the government a referral to the CJEU would not see the Digital Economy Act being scrutinised in the same way as Belgium law has been under the Charter. The UK added a few provisos when giving the Charter the force of law with the Lisbon treaty, one of those was to preclude the CJEU from judging whether a UK law violates the Charter (see article 1 of protocol 7).

Interestingly the Telegraph have noted that the Government are circumventing the need to even rely upon article 18 Digital Economy Act by opening “talks between ISPs and the music industry to encourage a voluntary agreement on a list of websites that would be blocked”.

In conclusion, in the UK, it is understandable for the government to grant some general powers rather than type out every possible detail in the law when addressing copyright infringement. This is particularly true in the field of technology and the internet, where flexibility is needed to adapt to this ever changing environment. But at the same, it is equally important in light of the essence of the SABAM opinion to ensure sufficient precision in the law to ensure its validity when placed under European human rights scrutiny.

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