Seán Sherlock (Cork East, Labour)

I will read faster.

In that case, the CJEU also found that requiring an ISP to install a contested filtering system would not be respecting the requirement that a fair balance be struck between the right to intellectual property and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information.

I am fully aware that concerns have been expressed that the proposed statutory instrument mirrors the Stop Online Piracy Act in the United States. However, I would point out that these concerns are not based on fact. The most worrying aspects of the US proposals would involve blocking access to websites internationally; taking down entire websites for one infringing item; blocking access to websites by the US state enforcement without notice; targeting companies between the site and end-user, without notice - for example, service providers, search engines, payment network providers and advertising networks; imposing a monitoring of content requirement on Internet companies and, in effect, forcing them to self-censor; extension of criminal liability; the by-passing of safe-harbour provisions in copyright law; lack of due process; disregard for fundamental human rights; and the involvement of government in civil infringement areas, etc.

I would stress that such a regime could not be introduced in the EU, where the safe-harbour provisions are protected in the e-commerce directive and where, in implementing EU law, the European Union Charter of Fundamental Rights must be applied. This includes the right to conduct a business, protection of data, the right to protection of personal data and the freedom to receive or impart information with the right to intellectual property. Critically, any order granted must be proportionate. These matters must be considered when deliberating on the granting of an injunction.

It is of the utmost importance to note that the purpose of the proposed statutory instrument is simply to provide explicitly that injunctions may be sought, as obligated by the two EU directives that I have already referred to, namely, the copyright directive, 2001 and the enforcement directive, 2004. It should also be noted that such injunctions are available in all other EU member states by virtue of the two directives already referred to. They have been required since at least December 2002 and since that time the Internet has flourished.

In granting such injunctions, the courts must take account of Court of Justice of the European Union judgments. As I have already stated, these judgments require that a fair balance be struck between the various fundamental rights protected by the Community legal order and the principle of proportionality. The statutory instrument is sufficient because, particularly following the Court of Justice decision in the Scarlet v. Sabam case, the courts have authoritative guidance on the balance to be achieved between, on the one hand, intellectual property rights and, on the other hand, the freedom to conduct a business enjoyed by operators such as Internet service providers, the protection of private data, the right of freedom of expression and information, and proportionality of any remedy.

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