Newsflash: ISP's to be responsible for preventing their services being used for illegal P2P

5th July 2007

On 29 June 2007 a Belgian court ruled that the Internet Service Provider ("ISP") Scarlet (formerly Tiscali) must take responsibility for illegal file sharing taking place on its network.

The judge in this case, brought by SABAM (The Belgian Society of Authors, Composers and Publishers), found there was sufficient evidence to show that the ISP's customers were committing copyright offences. At the end of 2004, he asked a technical expert to assess the possibility of blocking peer to peer ("P2P") services not exclusively used for exchanging copyright-protected material.

When the expert filed his report on 3 January 2007 it detailed eleven solutions for the control of P2P networks, seven of which were said to be available to Scarlet. The judge therefore ruled that ISPs do have the technical resources to control infringement on their networks, and in particular pointed to filtering technology developed by Audible Magic. Scarlet were ordered to end copyright infringement (through P2P file sharing) of musical works belonging to SABAM's repertoire and told to notify SABAM of the measures implemented. They were given six months to comply before facing a 2,500 Euros a day penalty.

The ruling is the first of its kind in Europe. It was previously thought that the "safe harbour" provisions contained in European E-Commerce legislation would protect ISPs acting as mere conduits of information. Yet the Belgian court were unwilling to accept Scarlet's argument that the implementation of these technical solutions would mean they risk losing their waiver of liability for conduit activities. The court insisted that the order did not impose on Scarlet a general obligation to monitor its network.

The decision looks set to be welcomed by the international recording industry. Illegal file-sharing is said to cause huge economic damage to the music industry with the International Federation of the Phonographic Industry ("IFPI") estimating there were some 20 billion illegal files shared on P2P networks in 2006. Their Chairman and CEO John Kennedy said of the decision:

"This is an extremely significant ruling which bears out exactly what we have been saying for the last two years - that the internet's gatekeepers, the ISPs, have a responsibility to help control copyright-infringing traffic on their networks. The court has confirmed that the ISPs have both a legal responsibility and the technical means to tackle piracy. This is a decision that we hope will set the mould for government policy and for courts in other countries in Europe and around the world.