The EU Court of Justice this week held in Case C-360/10 Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog BV that the owner of an online 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.
SABAM is a Belgian management company which represents authors, composers and publishers of musical works. It is responsible for authorising the use by third parties of copyright-protected works of those authors, composers and publishers. SABAM claimed that Netlog’s social network ( where every person who registers acquires a personal profile which the user can complete himself and which becomes available globally) also offers all users the opportunity to make use, by means of the profile, of the musical and audiovisual works in SABAM’s repertoire, making those works available to the public in such a way that other users of that network can have access to them without SABAM’s consent and without Netlog paying it any fee.
SABAM sought from the Brussels court of first instance an order that Netlog cease unlawfully making musical or audio-visual works available from SABAM’s repertoire. Netlog claimed that granting such an injunction would involve imposing upon Netlog a general obligation to monitor contrary to Article 15 of the E-Commerce Directive (Directive 2000/31/EC).
The Court of First Instance made a reference to the EU Court of Justice for a preliminary ruling on whether EU law precludes a national court from issuing an injunction against a hosting service provider, which requires it to introduce, at its own cost and for an unlimited period, a system for filtering information stored on its servers by its users, which applies indiscriminately to all its users as a preventative measure.
Consistent with its decision in Case C 70/10 Scarlet Extended SA v Societe Belge des Auteurs Compositeurs et Editeurs(Sabam)  (involving an internet service provider), the court found that issuing an injunction requiring Netlog to install a system for filtering information which is stored on its servers by its service users which applies indiscriminately to all of those users as a preventative measure exclusively at its expense and for an unlimited period and which is capable of identifying electronic files containing musical, cinematographic or audio-visual work in respect of which the applicant for the injunction claims to hold intellectual property rights, with a view to preventing those works being made available to the public in breach of copyright would not comply with the prohibition on imposing a general monitoring obligation.
Furthermore the national court would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the right to receive or impart information, on the other.
The judgement clarifies for institutions the extent of any obligation to monitor. For further information JISC Legal has guidance on Interception and Monitoring of Communications at http://jiscleg.al/InterceptionandMonitoring
The ECJ’s press release can be found here and full text of the judgement is available here.