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The European Court of Justice ruled on 16 February in the case SABAM v Netlog NV that general filtering systems installed for the prevention of copyright infringements are disproportionate and confirms its prior decision in the so-called Scarlet case (2011).

In the Scarlet case, the Court was asked to clarify whether the request made by the Belgian copyright society, SABAM, to the Internet service provider, Scarlet to implement a general filtering system to prevent the unlawful use of musical and audio-visual work by the users of its network was in conformity with the EU legal framework. In the Netlog case, the Court had to rule about the same request made this time to an online social network provider, Netlog. In both cases, the implementation of a general filtering system would have implied Scarlet and Netlog to perform an active observation of the files stored or exchanged by their users on their networks in view of identifying where protected works contained in SABAM’s catalogue were shared and to determine where this sharing was presumably done unlawfully, with the ultimate goal of taking down or blocking such files.

The Court first ruled that the implementation of general filtering systems collides with the prohibition contained in the E-Commerce Directive to Member States to impose a general obligation to monitor on service providers conducting activities of mere conduit, caching and hosting. In addition, general filtering systems intended to protect copyright challenge several fundamental rights protected under the Charter of Fundamental Rights of the European Union. The Court acknowledges that, first, it would affect Netlog’s freedom to conduct its business as it would require Netlog to install a complicated, costly, permanent computer system at its own expense. Second, it would affect users’ right to the protection of their personal data as it would involve the identification, systematic analysis and processing of information connected with the profiles created on the social network. Finally, such a system would put at risk the freedom of information, i.e. the freedom to receive or impart information, as the system might not have been always able to distinguish between unlawful content and lawful content, eventually blocking lawful communications.

To consult the statement by the European Court of Justice click on this link:



http://curia.europa.eu/jcms/upload/docs/application/pdf/2012-02/cp120011en.pdf