A recent Dutch court handed down a fascinating ruling which sided with ISPs who were under pressure to block the infamous Pirate Bay. What is really interesting about the ruling is that the Court found that ineffective blockades infringed ISPs’ rights under the European Charter of Fundamental Rights:
In its ruling the Court states that the Pirate Bay blockade is disproportionate and ineffective, citing TNO research and the Baywatch report of the University of Amsterdam. As a result, the blockade was found to hinder the Internet providers’ entrepreneurial freedoms.
The court based its decision on the Charter of Fundamental Rights of the European Union, which both includes “freedom to conduct a business” and “right to property.” In this case the entrepreneurial freedom outweighs property rights, because the blockades are disproportionate and ineffective.
The South African Bill of Rights has similar rights including the Freedom of trade, occupation and profession which states that –
Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.
The Dutch argument may not work in the context of our Bill of Rights but it is certainly an interesting argument to make. What must surely be relevant in a hypothetical South African court decision is how effective attempts to block access to torrent sites are and whether more draconian efforts become unduly oppressive?
p>(Source: TorrentFreak’s post titled “ISPs No Longer Have to Block The Pirate Bay, Dutch Court Rules“)