Brussels, 16/02/2012 (Agence Europe) - The owner of an online social network cannot be obliged to install a general filtering system, covering all its users to prevent the unlawful use of copyright musical and audio-visual work, the Court of Justice of the EU ruled on Thursday 16 February in case C-360/10.
The Court restated almost word for word its previous ruling of 24 November 2011 in case C-70/10 (see EUROPE 10502), which rejected such a supervision and blocking obligation on internet access providers. The Court takes the view that such an obligation would infringe the electronic commerce directive and the fundamental rights of clients, and that it would not ensure that a fair balance can be struck between the protection of copyright, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other.
The case in point concerns SABAM, a Belgian management company which represents authors, composers and publishers of musical works, and Netlog NV, which runs an online social networking platform of the same name. SABAM took issue with Netlog's enabling all users to make use, by means of their profile, of the musical and audio-visual works in SABAM's repertoire without SABAM's consent and without any fees being paid. It requested the Court of First Instance of Brussels to order Netlog, under threat of daily penalties, immediately to cease unlawfully making available musical or audio-visual works from SABAM's repertoire. Netlog submitted that granting SABAM's injunction would be tantamount to imposing on Netlog a general obligation to monitor, which is prohibited by the E-Commerce Directive. The Belgian court asked the Court if such an injunction would contravene EU law.
The Court found for Netlog. It holds, firstly, that an injunction of this sort would require the social networking site to put in place a filtering system that could: - identify, within all of the files stored on its servers by all its service users, the files which are likely to contain works in respect of which holders of intellectual-property rights claim to hold rights; - determine which of those files are being stored and made available to the public unlawfully; - and prevent files that it considers to be unlawful from being made available. This system would require the social networking network to carry out general monitoring of the information stored on its servers, something which is prohibited by the E-Commerce Directive. Secondly, it would require Netlog to install a complicated, costly and permanent computer system in order to prevent, with no limit of time, the illegal use not only of existing works, but also of works that have not yet been created at the time when the system is introduced. Accordingly, such an injunction would result in a serious infringement of Netlog's freedom to conduct its business. Thirdly, the filtering system may also infringe the fundamental rights of its service users - namely their right to protection of their personal data and their freedom to receive or impart information - since it would involve the identification, systematic analysis and processing of information connected with the profiles created on the social network. Lastly, such an injunction could potentially undermine freedom of information, since that system might not distinguish adequately between unlawful content and lawful content, and so lead to blocking of lawful communications.
Consequently, the Court finds that an injunction of this sort would not guarantee the fair balance that authorities and national courts are required to ensure between protecting copyright and the fundamental rights of those affected by the measures that would be put in place as a result of the injunction.
SABAM has noted the ruling and is seeking “to put in place alternative measures” to protect copyright holders. It points out that the Court “acknowledges that copyright is a fundamental right and that authors must force hosting service providers to take steps to combat counterfeiting, including to prevent future infringement of copyright”. (FG/transl.rt)