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Deutsch: ACTA & die Entscheidungen zu Netlog und Scarlet/Sabam – was wir ...

There has been a great degree of noise around the recent Netlog/Sabam ruling from the European Court of Justice and what this may prove or disprove about ACTA. This article will seek to separate fact from fiction.

In both cases, Sabam had asked for an injunction requiring suspicionless and open-ended filtering of citizens' use of Internet services (web hosting for Netlog and peer-to-peer networks for Scarlet), paid for by the Internet service provider. In the Netlog case, the Belgian courts had wanted to oppose the injunction while they wanted to support the injunction in the Scarlet case.

In both cases, the rulings of the Court were based on the Charter of Fundamental Rights of the EU. Pro-ACTA lobbyists and politicians argue that the Charter can therefore be relied upon to prevent ACTA from being implemented in ways that would breach the rights of citizens. In reality, unfortunately, the Court rulings prove just how dangerous ACTA actually is.

Under Article 27 of ACTA, states party to the agreement are required by law to encourage enforcement cooperation by private companies. If either Scarlet or Netlog had implemented the measures as a "voluntary" act of cooperation with Sabam, neither of the cases would have ever been sent to the Court - or at least not for several years. Under ACTA, therefore, measures which were considered by the European Court of Justice to be in breach of privacy, freedom of communications and freedom to do business would have been arbitrarily and illegally implemented outside the rule of law.

The European Commission frequently seeks to reassure governments and citizens that ACTA only concerns large-scale infringements and ordinary citizens (however that may be defined) would have nothing to worry about. However, the European Commission itself, even before ACTA was finalised, sought to introduce as a "voluntary measure" exactly the kinds of filtering by ISPs that were proposed in ACTA. It remains a complete mystery how the Commission can have proposed illegal measures designed to target ordinary end-users and still argue that exactly the same approach in ACTA will both be legal and will not target the end-users.

Another major problem with ACTA is its effect on countries outside the EU, a point which is also well illustrated by the Scarlet/Sabam case. ACTA requires states to have injunctions in their national law to oblige third parties to prevent goods from entering into the channels of commerce. In the Scarlet/Sabam case, the court wished to impose an injunction on Scarlet (as a third party) to prevent the transfer of files which rightholders claimed were unauthorised. Because this was asked for with a legal context and because the case was referred to the Court of Justice, a ruling was possible that such an injunction would breach three separate fundamental rights.

If the same measure was proposed in a country outside of the European Union, it is reasonable to assume that the national court would come to the same conclusion as the Belgian court. However, in the absence of a comprehensive set of rules on fundamental rights and without a higher court to refer the case to, the injunction would simply be applied - breaching fundamental rights.

In summary, Scarlet/Sabam and Scarlet/Netlog prove that it is necessary to use law to implement any proposed restriction on the right to communication or privacy online. Relying on "cooperation" mechanisms is a recipe for the circumvention of democratically agreed legal protections of fundamental rights. Scarlet/Sabam proves the dangers of the use of injunctions in the digital environment and the fact that ACTA will inevitably lead to breaches of fundamental rights outside the EU, contrary to the Union's obligations to defend democracy and the rule of law in all of its international relations.

Scarlet/Sabam decision
http://curia.europa.eu/juris/liste.jsf?language=en&jur=C,T,F&n...

Netlog/Sabam decision
http://curia.europa.eu/juris/liste.jsf?language=en&jur=C,T,F&n...

European Commission's filtering proposal (only in French, 2.09.2010)
http://www.pcinpact.com/news/59102-hadopi-bruxelles-filtrage-blocage-e...

(contribution by Joe McNamee - EDRi)