SABAM case: court confirms Scarlet must filter or pay fines from 1st November

31st October 2008

There have been some misleading reports in the online media over the last few days about the decision by a Belgian court in the SABAM v Scarlet case, with some commentators suggesting the court accepted Scarlet's claims that it is impossible to filter copyright infringing content online.

In fact, the court rejected the ISP's claims that filtering was impossible and upheld its earlier ruling that Scarlet must stop its users from infringing copyright on peer-to-peer networks. The court said it was "not unreasonable to require of SA Scarlet that it make greater efforts than those which it had shown thus far" to stop copyright infringement.

The court also recognised that although the Audible Magic system was not implemented in this case for commercial reasons, there are other filtering and blocking solutions available and Scarlet had not sufficiently explored these options. The court in no way suggested that the Audible Magic system could not be successfully implemented in other cases.

The court gave Scarlet additional time to implement the necessary measures it must take, but set a deadline of 31st October 2008 for it to do so. Contrary to some suggestions, the ISP will face financial penalties if it fails to act and is liable for fines of €2,500 every day from 1st November 2008 until it takes effective steps to curb its users' serious infringement of Belgian copyright law.

SABAM's has stated: "Scarlet may have won some extra time, but the Sword of Damocles is still hanging over its head. If Scarlet fails to comply with the court order to prevent P2P infringements by its users in the lead up to the appeal hearing in October 2009, it could still have to pay penalties amounting to some one million euro. The recent judgment provides clear guidance for Scarlet, suggesting that it should consider all potential solutions in order to reach the sought-after goal and should work out an objective and reliable procedure to implement them, if necessary combining them."

The ruling in this case confirms the right owners' view that it is feasible and reasonable for ISPs to invest in technology to curb mass copyright infringement on their networks.