1. Does Article 15 of the E-Commerce Directive prohibit an injunction compelling an ISP to filter P2P communications because it would be 'a general obligation to monitor'?
2. If not, should the Belgian court impose such an injunction on Scarlet?
To save even more time, the ECJ could pass on the second question because it has already provided courts with a guideline in Promusicae: the Copyright Directive (including injunctions) should be interpreted in accord with fundamental rights (e.g. rights to property, private life and freedom of expression) and other general principles of Community law (e.g. proportionality). In Sabam the court would balance the copyright owners' property right against users' rights to privacy and freedom of expression; then consider the proportionality of any measures (e.g. effectiveness). Furthermore, Recital 59 of the Copyright Directive says that the conditions and modalities relating to injunctions against digital intermediaries should be left to the national law of the Member States. The ECJ could decline to take on a general obligation to monitor injunctions.
That would leave just the one question – can ISPs be placed under an obligation to filter?
The answer to this question isn't spelled out in black and white in the E-Commerce Directive. It is a policy question that needs to be answered in the context of today's internet, not that of 2000 when the E-Commerce Directive was created. The copyright problem is on a different scale in 2010 (Napster was new on the block in 2000). Privacy concerns about 'monitoring' need to be reviewed in the context of the internet's mass voluntary waiver of privacy via Adwords etc. Concerns about whether ISPs can bear the financial burden of filtering need to be objectively reassessed in the light of real profits made by ISPs today.
How is the ECJ likely to respond? If this leaked document concerning ACTA is anything to go by, the ECJ will not authorize a filtering obligation – nor is it likely to be created by ACTA (see here). Although the issue in ACTA would be a general statutory obligation rather than a single injunction, as in Sabam, the effect of a single unlimited injunction would be comparable. Interestingly, in the consultation process that has culminated in the Digital Economy Bill, the British government looked at a general obligation on ISPs to impose filters (BERR Consultation on Legislative Options to Address Illicit P2P File-sharing, July 2008, Option A4) but in the Government's response of 29 January 2009, that option had disappeared without trace.
Filtering seems to be deemed politically incorrect but is it really such a dud idea? Currently individual rightsholders must scan the endless vistas of the internet in the hope of spotting an infringement. Then they enter the longwinded, expensive process of removing it, knowing that they are only fire-fighting as it will only be the tip of the iceberg. ISPs, by contrast, have a birds-eye view of everything.
If a restaurant has a health and safety problem, who is best placed to fix it? The one-off customer who gets food poisoning? Or the restaurant owner who exercises day-to-day control over the restaurant's premises and practices?