Scarlet was recently ordered by a Belgian court to block its
users from engaging in illegal file-sharing. It has now lodged an
appeal against that ruling.
"This measure is nothing else than playing Big Brother on the
Internet,'' said Scarlet managing director Gert Post in a
statement. "If we don't challenge it today, we leave the door open
to permanent, and invisible and illegal, checks of personal
data."
Belgian Authors' rights group SABAM had taken a case against
Scarlet asking the court to order it to screen traffic for material
that would breach members' copyrights. A Belgian court surprised
observers earlier this year when it ordered Scarlet to use
screening technology to block such traffic.
Scarlet has now said that it believes that complying with the
court order would force it to break the law. It said that Belgian
phone tap laws prohibit it from eavesdropping on subscriber data
transfers. It also said that Belgian privacy laws prevented it from
the proactive monitoring of people's communications.
Scarlet also said that e-commerce laws stipulated that such
activity is only appropriate in certain specific circumstances, and
not as a general approach that can be taken with all customers.
The court had ordered that Scarlet use Audible Magic software to
scan its traffic on peer to peer (P2P) networks to search for the
unauthorised transfer of copyrighted material.
The ruling took many observers by surprise because it had been
assumed that ISPs were protected by laws based on the EU's
E-Commerce Directive rather than potentially conflicting laws based
on the Copyright Directive.
The head of the legal work group at the Belgian ISP Association,
Geert Somers, told OUT-LAW when the adjudication was announced that
he believed that the E-Commerce Directive-based laws should take
precedence.
"The E-Commerce directive needs to be seen as prevailing over
the Copyright Directive," he told OUT-LAW Radio. "As a matter of
fact the implementing legislation in Belgium at the moment is not
entirely clear and I strongly believe the judge did not examine
this relationship sufficiently,"
A SABAM spokesman said at the time that it had asked all of
Belgium's ISPs to monitor traffic in the light of the ruling.
Scarlet said this week that the E-commerce Directive should
protect it. "The E-Commerce Directive and the law are very clear:
the ISP can in no case be held responsible for the information they
transmit," said a Scarlet statement.
"In this situation, one can compare the ISP with a motorway,"
said Post. "As ISP, we are held responsible for the infringements
for our customers on our network. In this case, will the owner of
the motorway be also held responsible for the infringements made on
the motorways?"
