The Belgian Court of Appeals has referred SABAM v Scarlet to the European Court of Justice. SABAM v Scarlet is the only known case of a European court ordering an ISP to filter peer-to-peer traffic. The injunction is currently suspended, following Scarlet’s failed attempt to implement the order and subsequent offer of proof that it was impossible.
Specifically, the Belgian court has asked the European Court to decide two questions.
The first is whether a requirement on an internet service provider to implement traffic-filtering mechanisms is consistent with EU legislation, including the e-commerce Directive, copyright in information society, intellectual property enforcement and privacy directives, as well as the provisions in Articles 8 and 10 in the European Convention of Human Rights.
The second question posed by the court is, assuming that the answer to the first question is positive, whether some kind of proportionality
test would need to be applied by a court when considering imposing such an obligation.