In what could potentially be very big news, and a first step in actively pushing back the copyright monopoly, the Advocate General Cruz Villalón of the Court of Justice of the European Union has given opinion that states:
Advocate General Cruz Villalón considers that the installation of that filtering and blocking system is a restriction on the right to respect for the privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights. By the same token, the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights.
Rick Falkvinge writes:
This means that Eircom can no longer be forced to eavesdrop on its customers to filter out certain parts, and it means that Danish ISPs can no longer be mandated to censor The Pirate Bay and AllOfMP3. Black Internet in Sweden can give the finger to the court order to block The Pirate Bay. Many, many aggressions from the copyright industry stand to just fall flat on their face.
One, no court may impose an ISP with an order to filter, in particular not because of enforcement of copyright monopolies;
Two, such filtering is a reduction of fundamental rights, so
Three, if laws are written requiring an ISP filter or block the internet, such laws must conform to very strict criteria that are applied to laws limiting fundamental rights. They must be effective, they must be proportionate, and they must be defensible in a democratic society. While this sounds like political wishywashing, it has some very specific meanings. It is useful to compare to what laws have been written to prevent terrorism: these laws are held to that standard, which the copyright industry wants badly to supersede. The Attorney General also goes into detail how such laws must be transparent and predictable.
What this does not say is that:
Four, no censorship must ever take place.
Five, no ISP may choose to limit what they present as “The Internet”.
Six, it has been the modus operandi of the copyright industry to threaten ISPs with “block to our wishes or we’ll take you to court”. This has been their standard operating procedure for the past couple of years, in order to establish enough precendents to get them written into law. Today’s verdict, or potential verdict, gives those ISPs the power to say “go play on the highway, parasites, we have an order from the highest possible court saying no court can force us to do that. We care more about our customers than about obsolete irrelevants”.
Seven, this is the highest court in Europe, referring to the (equivalent of) Constitution of Europe. Thus, there are no courts and no laws that can supersede this. No EU Directive can change this (potential) verdict. The way forward for the copyright industry appears permanently blocked; I hold it as absolutely improbable that they’ll get paragraphs in the referred European Charter of Human Rights that put the copyright monopoly before the sanctity of correspondence, of personal data, and freedom of information.