Europe to rule on whether social networking sites must monitor user generated content

19-Aug-2010  |  Copyright & Media Law, Technology, Media & Telecoms, Trade Marks & Designs


The European Court of Justice (ECJ) is expected to rule next year on whether a social networking site must monitor user generated content for copyright infringement. The case is relevant to all those operating websites where users can post their own content.

While the point is as yet untested, many commentators believe that, provided a social networking site:

  • is unaware of the infringing or illegal content; and
  • has an effective notice and take down procedure in relation to such content (under which it promptly removes infringing or illegal content from the site once on notice of it),

it can rely on the safe harbour provisions available to information society services under the European Directive on Electronic Commerce (2001/31/EC), without the need to monitor users’ posts. Article 15 of the Directive clearly states that Member States shall not impose an obligation on an information society service to monitor the information which it transmits or stores or to actively seek facts or circumstances indicating illegal activity.

If the ECJ decides that operators of these sorts of websites cannot rely on the safe harbour provisions, the result will be that operators will have to start monitoring their users’ activity in order to avoid infringement claims. This could have a significant effect on the business model of many social networking sites and sites where users can post their own content.

The reference has been made in the Belgian case of Netlog v SABAM in which copyright collecting society SABAM (Société Belge des Auteurs, Compositeurs et Editeurs) seeks a ruling that social networking site Netlog (a “social portal for more than 69 million young people in Europe”) must implement technical measures to monitor the content that its users upload, to ensure the removal of infringing content. We understand that SABAM is seeking a similar ruling in a case against YouTube in the Belgian courts.

Case: Netlog v SABAM (C-360/10) – Full details of the reference will appear here in due course.

Lawyers Niri Shanmuganathan, Lorna Caddy, Graham Hann