Social networks and ISPs are not required to install general filtering systems to prevent copyright infringement
Social networks and ISPs are not required to install general filtering systems to prevent copyright infringement
SABAM v Netlog (C-360/10) – 16 February 2012
Scarlet Extended v SABAM (C-70/10) – 24 November 2011
The Court of Justice of the EU (CJEU) has ruled that social networking websites and ISPs cannot be ordered to filter all content they host or transmit, to identify and block infringing material. We look at the implications of the case for rights owners and intermediaries.
Facts
The decisions arose out of litigation brought by the Belgian collecting society, SABAM, against Scarlet, a Belgian ISP, and Netlog, a Belgian social network. SABAM claimed that Scarlet’s users were using the ISP’s services to download SABAM’s musical and other works via peer-to-peer networks. In the Netlog case, SABAM claimed that Netlog was offering users the opportunity to make SABAM’s works available in their user-profiles. Two Brussels courts asked the CJEU if EU legislation prevented them from ordering the ISP and social network to filter all data passing through, or stored by their users, on their servers and to block any infringing material.
Legal background
The CJEU had previously held that national courts can order intermediaries (in that case, eBay) to take measures aimed not only at ending existing infringements but also at preventing further infringements (L’Oréal v eBay, see our article here).
However, Article 15(1) of the E-Commerce Directive 2000/31 prohibits Member States from imposing on service providers a general obligation (a) to monitor information they transmit or store or (b) to seek facts or circumstances indicating illegal activity. Article 3 of the IP Enforcement Directive 2004/48 states that remedies shall be fair and equitable, not unnecessarily complicated or costly, not entail unreasonable time-limits, and be effective, proportionate and dissuasive.
Lawyers Timothy Pinto, Adam Rendle
