ECJ declines to impose general filtering obligations upon social network operator

On 16 February 2012 the European Court of Justice issued its long-awaited decision in Sabam v. Netlog (Case C-360/10).

In this case – whose facts are similar to those in Scarlet (Case C-70/10, see TTLF Newsletter 1/2012 p.6) – the Belgian Society of Authors, Composers and Publishers (SABAM) filed an injunction against social network website Netlog that required Netlog to implement a filtering system to prevent any copyright infringement of their rights by its users. Like in the Scarlet decision, the Belgian Court referred the case to the ECJ for a preliminary ruling.

In line with its Scarlet decision, the ECJ held that the owner of an online social network could not be subject to any obligation to install a general filtering system covering all its users in order to prevent copyright infringement.

In holding against general filtering obligations, the Court stressed that the defense of intellectual property rights, effected through Article 17(2) of the Charter of the Fundamental Rights of the European Union (“the Charter”), had to be balanced against the hosting providers’ fundamental freedom to conduct their business (Article 16 of the Charter) and against Internet users’ fundamental rights to protection of their personal data and freedom to receive or impart information.

As a result, in ordering filtering obligations to social networks and/or other Internet intermediaries (as permitted by Article 8 (3) of the Copyright Directive), national courts and authorities will have to make sure that such filtering obligations: (i) do not impose upon the targeted service provider any general monitoring obligation forcing it to install a complicated, costly and permanent system at its exclusive expense and (ii) respect users’ privacy and fundamental rights to receive and/or impart (lawful) information. [Béatrice Martinet Farano]