ECJ kills off content filtering

Last week’s ruling by the European Court of Justice in the case of SABAM v Netlog that social networks cannot be held liable for content posted to them will come as a relief to campaigners against the introduction of SOPA- and PIPA-style anti-piracy measures. SABAM, a Belgian royalties collection body for recording artists, argued that networks should have to filter for audiovisual content posted without the consent of the rightsholder, a point of view the court chose not to agree with.

According to the decision Netlog, a social network, could not be obliged to introduce content filtering mechanisms as doing so could impede "the freedom to do business, the right to protection of personal data and the freedom to receive or impact information."

This is the second high profile defeat SABAM in recent months. Last November it failed in a similar action against ISP Scarlet to introduce filtering on its communications network, ending a legal battle dating back to 2007.

These two decisions effectively nullify the greatest fears of campaigners against the statutory instrument introduced to bring into line Irish and EU copyright law nicknamed ‘SOPA Ireland’: a strangled Internet infrastructure, a copyright-first approach in all litigation and the wholesale shutdown of social networks and discussion forums. A further fear, that the vagueness of the SI would lead to an ill-prepared judiciary being taken advantage of by the powerful entertainment industry has also been neutralised.

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So content filtering is officially dead and common sense has prevailed thanks to two test cases originating in Belgium. Neither case, however, would have been a struggle for the ECJ to adjudicate on. The EU has already cemented the rights of citizens to information and communications technology and the realities of the open market are such that any attempt to impede fair trade or information across borders would be anathema to the European project (where access to a TV signal is now considered a human right).

Minister for Research and Innovation Sean Sherlock, the lightning rod in the ‘SOPA Ireland’ outcry, issued a statement saying he welcomed the decision and that it would "provide further clarity to Irish courts in adjudicating such matters."

The second player in Ireland’s anti-piracy debate, recording industry body IRMA, has argued that neither decision has a material impact on its strategy of seeking individual injunctions against websites engaged in piracy and the introduction of ‘three-strikes’ agreements. Sean Murtagh, head of anti-piracy operations at IRMA said not only was he satisfied by the outcome, it had no material effect on the organisation’s anti-piracy strategy. "IRMA does not seek implementation of filtering technology," he wrote in an e-mail to TechCentral.ie. "IRMA welcomes this ECJ decision as it confirms that injunctions should be available against intermediaries whose networks are used to breach copyright."

Where does this leave the debate? Back where it started before the hysteria set in, only without the backdrop of SOPA and PIPA. Instead we have the Anti-counterfeiting Trade Agreement (ACTA), a controversial treaty signed by 31 countries (including Ireland) but under threat as Germany dithers over how intellectual property should be handled.

Remove the ACTA bogeyman and the situation remains exactly the same as it did in 2010. Now that’s progress.