In its role as the trade association representing Belgian ISPs (Internet Service Providers), ISPA Belgium wishes to respond following the writ against Tiscali issued by SABAM (the Belgian Society of Authors, Composers and Publishers).
In the writ, SABAM makes reference to particular computer programmes that permit the direct exchange of data between Internet users (so called “peer-to-peer” or “P2P” software). The type of data that is exchanged depends on the type of files that Internet users wish to share. The possibilities are therefore very broad, as these could be documents or music or video files. A well-known example of such programmes is Kazaa.
SABAM argues that through Tiscali’s involvement, the possibility exists to download music and demands that Tiscali do everything necessary both to ensure that it is not possible to download such exchange software and also to prevent the functioning of such services.
ISPA is surprised by the content of the writ, because ISPs’ responsibilities in relation to these matters have been clear for some time , through the law of 11 March 2003 regarding certain legal aspects of the Information Society (“the E-Commerce Law”). In accordance with the terminology of the E-Commerce Law, ISPA believes that ISPs fulfill in these cases all the criteria which would give them immunity as “mere conduits” (namely that they only provide the communications channel and are not actively involved in the communication). Not one single Belgian ISP hosts (i.e. durably stores) a P2P site on its servers, nor any of the material that can be downloaded with this software.
An analogy can be made between what happens on the “information superhighway” (as the Internet is frequently called) and what happens on a real highway: are the builders or administrators of a motorway responsible for illegal activities of road-users? Belgium has very clear legislation regarding illegal activities on the Internet. ISPs are well aware of the problem of illegal downloading of music and therefore encourage the development of, and transition to, legal and paid online services. ISPA members, including Tiscali, already offer such services.
