Can ISPs be required to block file-sharing?

EDRI has a very good summary of the remarkable decision in SABAM vs SA Scarlet which requires a Belgian ISP to monitor its network so as to block the sharing of copyrighted files over peer to peer networks:

In an unprecedented decision, the Court of First Instance in Bruxelles has ordered Scarlet, a Belgium ISP, to implement technical measures in order to prohibit its users to illegally download music files.

The decision comes after a complaint initiated in 2004 by Sabam (Belgian Society of Authors, Composers and Publishers) against the Belgium ISP Tiscali, now renamed as Scarlet. A first intermediary ruling of 26 November 2004 accepted the possibility for an ISP to disconnect customers if they violate copyrights, and block the access for all customers to websites offering file-sharing programs. But further technical clarifications were needed, so an expert was appointed in order to present its opinions.

In a report published on 3 January 2007, the expert presented 11 solutions that could be applied in order to block or filter the file-sharing, and seven of them could be applied by Scarlet.

The court has decided that Scarlet need now to implement one or more technical measures in order to stop the copyright infringement, by making it impossible for its subscribers to send or receive music files from the repertoire of Sabam via p2p software. Scarlet also needs to inform Sabam on the technical measures that will be implemented. The decision needs to be implemented in 6 months, or the ISP must pay 2 500 euros /day as damages for non-compliance.

The decision did not consider the issues regarding privacy, freedom of expression or the right to the secrecy of the correspondence. Scarlet also claimed that the duty imposed by the court is a general obligation to monitor the network, that is contrary to the EU E-commerce Directive. But the court stated that the decision was not an obligation to monitor the network and that the solutions identified by the expert were just technical measures allowing blocking or filtering certain information sent through the Scarlet's network.

There is a tension here between different aspects of European law. Copyright law requires member states to give copyright holders effective remedies against infringement - including injunctions against intermediaries who facilitate infringement. On the other hand, the E-Commerce Directive recognises that it would be impossible to operate a regime where ISPs were responsible for the activities of their users, and establishes protections for ISPs including a provision which prevents member states from imposing a general duty on ISPs to monitor their networks for illegal activity. This decision appears to privilege copyright law over the safeguards of the E-Commerce Directive, privacy of users, and freedom of expression and, if upheld, will result in ISPs become privatised censors (at their own cost, no less). Once the technology is put in place to prevent one type of material being distributed, we can expect function creep as other interest groups seek to censor other material also.