Belgium | SABAM vs Tiscali (Scarlet)

Brussels Court imposes measures in order to prevent illegal downloads via P2P

Belgian SABAM has won an important legal battle within the context of its dispute with TISCALI, which has become SCARLET EXTENDED Ltd. In its June 29, 2007 sentence, the Court of First Instance of Brussels demanded that the access provider adopt one of the technical measures put forward by the expert in order to prevent Internet users from illegally downloading SABAM’s musical repertoire via P2P software. The sentence could set a precedent.

Consequently, the Court ordered TISCALI (SCARLET) to put an end to the copyright infringements through the illegal file sharing of its customers, by way of P2P software, of electronic files containing a musical work belonging to the SABAM repertoire. Additionally, TISCALI (SCARLET) has to notify SABAM in writing of the measures that it will apply concerning this sentence. TISCALI (SCARLET) has 6 months to conform itself to this decision, ot it will rise a penalty of €2.500 per day’s delay.

It appears from the extensive sentence - which is inline with article 8.3 of the European Directive on the harmonization of certain aspects of copyright and related rights in the information society - that the court retained none of the arguments put forward by TISCALI (SCARLET) regarding the right of privacy, the right of secrecy of correspondence and the right to freedom of expression. Nor did accept it the ISP’s argument that “the requested technical measures came down to imposing a duty of supervision of the entire P2P activities, which is contrary to the legislation on E-commerce”. As for TISCALI (SCARLET)'s risk of losing, due to the implementation of filtering measures, its waiver of liability for activities of mere conduit, the court decided not to uphold this argument.

The court insisted on the fact that the termination order does not impose a general obligation to monitor its network on TISCALI (SCARLET) . The solutions identified by the expert are “technical instruments” that limit themselves to blocking or filtering certain information transmitted on the network of TISCALI (SCARLET). They do not constitute a general obligation to monitor the network. Moreover, the court considers that filtering and blocking software are not dealing as such with any personal data and that a blocking measure has a purely technical and automatic character, as the ISP is not playing any active role in the blocking or filtering.