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Duty to monitor P2P traffic in the EU?


A recent ruling by a Belgian court addresses the obligations of an ISP in cases where its users infringe copyrights. The Belgian Society of Authors, Composers and Publishers (SABAM) instituted in June 2004 a prohibitory injunction in the court of first instance of Brussels against the Internet service provider Tiscali. Through this injunction, SABAM seeks to put an end to the use of P2P networks in Belgium. Reportedly, the court now ruled that Tiscali should disconnect customers if they violate copyrights, and block access for all customers to websites offering file-sharing programs. The court also ordered a technical investigation into the possibility of blocking access. While the decision has not been made public by now, EDRI raises the interesting question of the ruling’s conformity with the relevant provisions set forth by the EU Copyright Directive and the EU E-Commerce Directive.

In this context, two aspects are particularly interesting. First, it is puzzling how an ISP could detect possible copyright infringements on P2P networks by its users. Arguably, a “blocking access”-approach would also include a “monitoring”-element in order to be effective. Would such a duty to monitor imposed upon an ISP be consistent with Article 15 of the E-Commerce Directive? Article 15(1) reads as follows:

Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.

This clear statement suggests that it is contradictory to EU law if an ISP was obliged by a national court to monitor the information that it transmits on its network. However, things are getting more interesting once we take Recital 47 of the E-Commerce Directive into consideration, which states:

Member States are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific case and, in particular, does not affect orders by national authorities in accordance with national legislation.

Thus, it seems clear that general monitoring obligations are not allowed, whereas monitoring in specific cases – arguably with regard to particular users and/or websites – is allowed. But the distinction between general and specific obligations gets blurred in Recital 48:

This Directive does not affect the possibility for Member States of requiring service providers, who host information provided by recipients of their service, to apply duties of care, which can reasonably be expected from them and which are specified by national law, in order to detect and prevent certain types of illegal activities.

Against this backdrop, it is less clear that a general requirement to implement and operate a monitoring or filtering system imposed by national authorities – if reasonable from a technical and economic viewpoint – would be a priori contradictory to the E-Commerce Directive’s provider liability provisions. (At least where the ISP hosts information provided by the recipients of its service.)

Second, it is important to note that SABAM obtained a prohibitory injunction, since the broad wording of Recital 45 seems to include “preventive” injunctions:

The limitations of the liability of intermediary service providers established in this Directive do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or administrative authorities requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it.

This Recital suggests that the court verdict in question is unlikely to be in contradiction to the “limited liability” provisions of the E-Commerce Directive; in this regard, I tend to disagree with EDRI’s initial analysis. Read also Article 8(3) of the EU Copyright Directive (EUCD) and Recital 59 of the EUCD:

Art. 8(3)
Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.
Recital 59
In the digital environment, in particular, the services of intermediaries may increasingly be used by third parties for infringing activities. In many cases such intermediaries are best placed to bring such infringing activities to an end. Therefore, … , rightholders should have the possibility of applying for an injunction against an intermediary who carries a third party’s infringement of a protected work or other subject-matter in a network. … The conditions and modalities relating to such injunctions should be left to the national law of the Member States.

However, it remains an open question what the scope and burden of a potential ISP’s monitoring and blocking obligation imposed by a preventive injunction can be.

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