A Belgian court rejected the claim of Sabam, the local collecting society, arguing that Internet Access Providers (ISPs) should pay a kind of compensation because of the potential exchange of pirated content occurring over their networks. In fact, Sabam requested Belgacom, Telenet and VOO, the main Belgian ISPs, to pay an amount equal to 3,4% of each broadband subscription.
The claim of Sabam was based on the assumption that ISPs should be liable for illicit behaviors committed by their users, including piracy of copyrighted works. However, the Belgian court has demolished this argument by reminding that pursuant to the “mere conduit” principle established by art. 12 of the Electronic Commerce Directive (Directive 2000/31/EC), providers of Internet access cannot be considered liable for the activities carried out by Internet users such as exchanging mail, files, communications and so on. The mere conduit principle is a milestone of the electronic commerce framework, in the absence of which ISPs should be obliged to check any communications occurring in their Internet to avoid liability (which is impossible, due to the size of Internet communication and the risk to affect fundamental rights of individuals).
The rejection of Sabam’s claim by the Belgian court is not a surprise, because the mere conduit principle has been clearly confirmed at European level by the legislator and also by the Court of Justice of the European Union in various cases. Accidentally, the most important European jurisprudence consists in decisions rejecting other claims by Sabam in the matter of network filtering (Sabam/Scarlet decision of 24 November 2011) and hosting filtering (Sabam/Netlog decision of 16 February 2012).
Now Sabam will decide whether to escalate the legal case via an appeal or to try to submit an interpretative question again to the CJEU. The latter case seems the real chance for Sabam, because the strategy of the collecting society may be to provoke a judgement at European level to reverse a legal framework which, until now, defends robustly the mere conduit principle. However, it is for the Belgian courts to decide whether to not to disturb again the European judges.
The move of Sabam is therefore part of a wider strategy of right holders aiming at reversing the mere conduit principle in any way. Such attempts are also visible in current debates in Brussels where there are insisting pressures by some part of the industry to open and revise the Electronic Commerce Directive. The European Commission is currently working on the Single Digital Market objective (a communication is expected by May 6, 2015) and many legislative initiatives may be contemplated therein. Although there are speculations that also a proposal of revision of the Electronic Commerce Directive may be part of it, it is however unlikely that the Commission may seriously consider to challenge the mere conduit principle for access providers, since such rule appears fundamental for the proper functioning of the Internet industry in its whole (not just for the online content) and it also constitute a guarantee for the fundamental rights of individuals, who do not want their communications to be intercepted, scanned or filtered in any way.