NET RESULTS:Do we really need the Government's proposed and controversial statutory instrument on copyright – officially, Statutory Instrument European Union (Copyright and Related Rights) Regulations 2012?

The Government has argued yes, that a single court decision – EMI v UPC, in which Mr Justice Peter Charleton said he was unable to grant injunctions to music company EMI against internet service provider UPC – requires this added bit of wording.

Under the instrument, an injunction could be obtained that would require an undefined “intermediary” – potentially not just internet service providers (ISPs), but cloud service providers, hosting companies, discussion boards, or any range of “intermediaries” – to block access to other sites, or be blocked themselves.

Critics, including legal experts, ISPs, indigenous and multinational internet-related companies (among them some of the country’s best-known employers and entrepreneurs), and of course tens of thousands of internet users who emailed and called on TDs, have argued against the statutory instrument.

The European Union doesn’t seem inclined to support the reasons given for needing such an instrument, either. Indications at European Commission level recently – following on EU level case law – are that the commission, like the European court, does not support injunctions for the purpose of web blocking.

Officials in the European Commission’s internal markets division and its justice division, which deal directly with legislation in the areas of the internet, business and copyright, tell me the commission “strongly” opposed website blocking or requiring internet service providers to “police” users or “screen the internet”.

Justice commissioner Viviane Reding backed this position publicly at a German internet conference in January, saying: “You’ll never have from Europe a blocking of the internet – that’s not the European option.”

A spokesman for Reding told me a ruling by the European Court of Justice last November on the Sabam (Société Belge des Auteurs, Compositeurs et Editeurs/the Belgian society for collecting music royalties) case (Case C-70/10 Sabam) – which concluded it is unlawful to force an ISP to implement filtering and blocking technologies – “is quite significant”.

Notably, Reding last month proposed fresh data protection legislation precisely because, as she told a seminar in Brussels that I attended, the old legislation from the 1990s preceded the development of the internet for services, social interaction and business. That, and inconsistency across member states in implementing the old directive, was limiting the growth of trade and internet business in Europe, and damaging public confidence in the net.

I wondered if any similar reappraisal was under way with European legislation. A spokeswoman for internal market commissioner Michel Barnier told me that following the Sabam decision – which was made after the UPC decision in Ireland and must draw it into question – the entire EU directive for enforcing intellectual property rights is under review at EU level, with an impact assessment currently being prepared.

That may lead to new proposals, but there’s no specific commitment. However, since the Sabam case, “our position hasn’t fundamentally changed regarding ISPs”, the spokeswoman said.

She noted they were watching for a decision on a related case, Sabam v Netlog, which also addressed the issue of the legality of filtering and blocking to try and prevent file-sharing, this time involving users of an online service.

Last week the European Court of Justice ruled on the case along a similar line to the earlier Sabam case – a social network “cannot be obliged to install a general filtering system, covering all its users, in order to prevent the unlawful use of musical and audio-visual work”.

According to the European Digital Rights organisation, “for the second time in just a few months . . . actions taken by Sabam have led the [European Court of Justice] to underline the importance of an open and free internet and the respect for fundamental freedoms”. So services that host content “cannot be obliged to monitor, filter and block alleged infringing content”.

That does not mean services and ISPs are not liable for illegal content, they note. They can still be prosecuted “if they had actual knowledge of the presence of such content hosted on their services and do not act expeditiously to remove it”. Which is exactly the situation that holds in Ireland, without the statutory instrument.

All of which would indicate that the rush to bring in this copyright statutory instrument is not just imprudent – it’s also unnecessary.