Ivy Tsui is a JD candidate at Osgoode Hall Law School.

Sabam v. Scarlet poses an important question to online Internet Service Provider (ISP) – should an ISP filter and block internet content to prevent copyright infringements?

The litigation in Sabam v. Scarlet started in 2007 when a Belgian collection society SABAM wanted Scarlet, an ISP, to monitor internet traffic and block peer-to-peer file sharing. The high court in Brussels ruled that Scarlet would be financially penalized if it did not implement a system for filtering and blocking sharing of copyrighted files. Now, the European Court of Justice (ECJ) had to answer whether the Charter of Fundamental Rights would allow the court to order an ISP to block content on its network.

Advocate General Cruz Villalón, advisor to the Court of Justice of the European Union (CJEU), wrote, in an opinion on the case, that forcing ISPs to implement a filtering and blocking system is imposing a “new obligation” and doing so would be “a restriction on the right to respect for the privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights. By the same token, the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights.”

However, the Advocate General held that the rights and freedoms of internet users could be reasonably restricted if it were adopted on “a national legal basis”, and that the “quality of the law” is sufficiently precise with clear and predictable terms.

Although the most effective solution to copyright infringements would be to block internet traffic or shut down file sharing websites, any restraint on internet usage would impinge an individual’s right to freedom of expression.  While the Advocate General’s opinion is not binding on the Court of Justice, it would be interesting to see how the Court would rule on this case.