From the official press release:
"The Court finds that, in adopting the injunction requiring Scarlet to install such a filtering system, the national court would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the right to receive or impart information, on the other."
I understand this isn't exactly revolutionary but amidst ACTA, SOPA, bailouts, and similar lunacy, this is a breath of fresh air and a glimmer of hope.
This is an unelected body making sweeping decisions without any accountability on a set of laws no-one voted for and a 'nation' that no-one voted for.
It may be positive for us, but in terms of democracy it highlights how ridiculous the EU and its unaccountable mechanisms have become.
I also believe my country, the UK, is trying to wriggle itself out of the human rights laws of the EU as they're too strong and (apparently) being abused, so expect other countries to follow suit and this judgement to be worthless in the long run.
After all this is in direct contradiction with explicitly passed laws in this country. Seriously worrying that an EU judge thinks he should start making these claims in direct contradiction to an elected body passing laws.
That is very much within the scope of what judges are for in many countries, including the various legal systems of the UK:
Checks and balances....
My point is the ramifications of this ruling are huge even though member states are presently passing laws in direct contradiction with this ruling.
Let's be clear here, I hate the Digital Economy Act. But I want my parliament to repeal it.
As much as I hate the idea of SOPA, as much as I hate the digital economy act, as much as I love privacy and vehemently argue for it, this is a very, very worrying ruling for anyone who values democracy.
As Switch says in the Matrix, "Not like this... not like this".
Perhaps (quite obviously from the d/vs) I didn't say it right or this is not the place to say it or perhaps you think I'm misunderstanding complex laws that I am definitely not even a novice in, but this is how I feel.
The fact that they are unelected and capable of overturning, reversing, or arbitrarily altering legislative decisions is exactly the point of judicial entities. Democracy is good because it's better at protecting rights than other forms of government - but if judges can do a better job, let them.
Disclaimer: American writing here. On this side of the pond, the courts are the only thing keeping us from racing into an uncontrolled police state.
It's worth pointing out again that the European Convention on and European Court of Human Rights are entirely and completely distinct from the EU and any federalisation coming from Brussels.
Not that this decision from the European Court of Justice (which is an EU institution) has anything to do with Human Rights anyway (other than perhaps insofar as the ECHR already stipulates the right of privacy).
Also they did rule that this was incompatible with the fundamental right to privacy (final sentence, rest preserved for context):
the Court finds that the injunction in question would require Scarlet to actively monitor all the data relating to each of its customers in order to prevent any infringement of intellectual-property rights. It follows that the injunction would impose general monitoring, something which is incompatible with the E-Commerce Directive. Moreover, such an injunction would not respect the applicable fundamental rights.
Clearly there is a "democratic deficit" in the current structure of the EU. This is a problem that will have to be righted one way or another.
In the long run I am optimistic and pro Europe, I don't have a problem with a certain level of federalisation and a supreme court in the style of America.
Of course I also completely agree with this judgement, but my views on Europe have not changed in the last few years. Despite what you may think at the moment, the things that unite European countries (compared to the rest of the world) far outweigh the things that divide us.
1. The EU court of justice's judges are appointed by the national governments (one judge per country). Each country has its say on who the court's judges are.
2. The EU court of justice's rulings are about EU law, but EU law is not national law. The highest court remains the national court, although typically national courts defer to the judgement of the EU court.
3. The EU court of justice only rules on EU directives, which are international treaties. In that sense it's similar to WTO rulings, except broader in scope.
4. The EU directives that it rules on are approved by the EU parliament, a body that is directly elected by EU citizens.
5. Directives themselves are not laws but treaties, they have to be turned into law by the national governments. While the EU can impose fines for not doing this in a timely matter, national governments can just choose to leave the EU treaty if they don't like it (participation in the EU is always voluntary).
Where in that whole chain of events is there supposed to be this "democratic deficit"?
That's like saying living in a dictatorship is not a "democratic deficit" as long as you are free to emigrate.
Which individual issue can you say a national government would choose to rather leave the EU than acquiesce on? just because the system is not entirely undemocratic does not mean it is perfect. While directives originally had to be agreed upon unanimously by all member countries, this is no longer the case. From http://en.wikipedia.org/wiki/Treaty_of_Lisbon: "Prominent changes included the move from required unanimity to double majority voting in several policy areas in the Council of Ministers."
I think the EU was "forced" on everybody its not at all a natural grown thing. If we want to walk towards one europe we should open the borders and just let it happen. Why put all the countries in one big systems. A stable System needs to grow and iterate. The countries with diffrent cultures should start by working closer together (for example all german speaking countries). This way we can build a stable europe in the long run. A one size fits all solution will always break down because its imo impossible to let people vote on it (they would recect it).
That said, I do mostly disagree with you in this particular case. As other commenters have pointed out, judiciary bodies are usually selected rather than elected (at least that is the case here in Finland). And I have not seen a single referendum on national legislation either, nor do I feel particularly satisfied with the level of accountability in the government.
So perhaps the shortcomings you raise are endemic in democracy globally, rather than ailments unique to EU?
I won't argue if the EU Court of Justice is a relevant institution to judge this case, or if it is an independent enough body as it should be, but the fact that it was not elected does not invalidate it.
Sometimes, we vote for people who put other people in charge, or make laws which determine how certain power positions can be reached. We do not have to vote for every individual. Certainly, I don't think I'm qualified enough to make a decision on who is a good judge or not.
The doctor who attends me at the hospital was not elected neither, but I don't think that this is worrying at all in terms of democracy.
This is pretty close to how the judiciary operates in many countries, including the UK.
Politicians will never recognize this fact because the copyright-based media not only contributes heavily to the financing of their campaigns but also brings those campaigns to the electorate. This is why, in the US at least, it's always the court system that saves us from the worst legislative assaults against free speech.
What a powerful concept as an anti-dote to 'war on file-sharing'.
...where BT (big British isp) was told to block sites?
Still, the injunction by the EU court could well shift the balance even in cases where blocking is more technically feasible. Fingers crossed.
In theory you could do the former without ever recording which users attempted to reach the site in question.
Of course, in such a case, the devil is in the details so maybe it does not apply because it's not asked to the ISPs to do that.
Orange (major French ISP) tried to monetize a securization solution based on a 2€/month contract that would block P2P traffic from unauthorized WLAN clients directly on the box. The solution was hacked within days (hours? not sure), simply by grabbing plain-text IP adresses of all the users with a simple /status http query to the webserver of the service provider, and injecting them on random P2P networks using IPFuck (sic), de facto forcing all customers to break the law.
Orange retired their solution from the market and decided to never again try to take on that subject.
Right now the only official stance from HADOPI (3-strikes organization) is a recommandation to use WPA2 instead of WEP. Still no means of securization, so if you get caught, you're to blame for not doing something nobody knows how to do.
But as they say, one should not look a gift horse in the mouth.
What happens with a decision like this is that countries with SOPA like laws will be where you want to be as part of the publishing industry whereas the EU now is the place where you want to be (or at least where you want your hardware to be) if you are a content hoster like youtube.
Of course this might end up with content only being available in countries with SOPA like laws, but looking at what is available for purchase here in Switzerland, I'd say that this is already the case.
As such, I'm really happy about this decision and I have in fact printed it out with the intention to hang it on the office wall.
"[National] authorities must not adopt measures which would require an internet service provider to carry out general monitoring of the information that it transmits on its network."
Who'da thunk? Color me impressed.
The directive could be amended much more easily than the charter.
can you explain what you mean by that for those not familiar with switzerland?
There are no TV shows in iTunes, we have no iTunes Match, there are only localized movies in iTunes; until very recently, there were only Gutenberg books in iBooks.
Until last week, there was no Spotify (or any other legal music streaming service).
There's no Netflix, no Hulu and TV stations are showing episodes of TV series that aired around three years earlier in the US. Aside of iTunes, there's no legal video on demand service.
Heck, I can't even buy most of the audiobooks I want on Audible or anywhere else. They still want me to buy them on CDs (and I will not buy 48 hours of Peter F. Hamilton on CDs and then rip them myself).
And then they wonder why people pirate content :/
Basically, there is plenty of content with geographic limitations. Something that might be less visible from the US but that can be pretty annoying once outside.
And that's without counting missing services such as Hulu or Netflix, for the same reasons.
Sure, we can use VPNs to access Hulu or BBC iPlayer, but that's an extra expense and adds an extra layer of complexity to it.
Take, for example, my BoxeeBox: it works great for local files, but it misses all of the cool streaming features that American users can enjoy.