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Editorial

No obligation to set up filtering systems in order to prevent copyright violations

ECJ, decision of February 16th, 2012, ref. C-360/10 – SABAM

Basic facts

By way of a preliminary ruling, the European Court of Justice has determined that European law must be interpreted as precluding an injunction by which a social network operator would be required to install a system for filtering user information which applies indiscriminately to all users, as a preventive measure, for an unlimited period of time in order to detect any instances of copyright infringement.

Details

In the main proceedings, the SABAM, a Belgium management company which represents authors, composers and publishers of musical works, has raised a claim for injunctive relief against the operators of a social network (Netlog) regarding the unlawful provision of works from SABAM's repertoire. Inter alia, Netlog allows its registered users to publish, by means of their profile, photographs and video clips.

Netlog argued that this claim would, in effect, create a general obligation for the company to monitor its users which would contravene the Electronic Commerce Directive. Moreover, Netlog claimed that such an obligation would amount to the need of setting up a preventive filtering system to  screen all user information at its own expense for an indefinite period of time in order to block files where necessary. In this context, also personal data would have to be processed.

The Court of First Instance, Brussels referred the matter to the European Court of Justice for a preliminary ruling.  The ECJ  ruled that indeed an injunction against a social network operator as demanded by SABAM would be contrary to European law. In its findings the European Court of Justice essentially states that the setting up of a filtering system as outlined above obliges the provider to actively monitor almost all data of its users. However, according to Article 15 (1) of the Electronic Commerce Directive there is no such general monitoring obligation. Furthermore, the contested filtering system may interfere with the basic rights of social network users (freedom of information, protection of personal data) und may, also for this reason, not be set up in an unrestricted and permanent way.

Appraisal

The European Court of Justice has - also interesting in the context of the current discussion concerning ACTA - by making a sweeping blow referring to all relevant directives dealing with protective rights in the context of electronic commerce, positioned itself clearly and unambiguously: Any unrestrained filtering and monitoring system in the sense of "Big brother is watching you", which ultimately "only" serves the purpose of enforcing claims for injunctive relief or damages under civil

law, is - with specific reference to the social network users' fundamental rights - not consistent with European law. We confidently approve of this decision of the European Court of Justice.. Such groundless and far-reaching monitoring by private companies are hardly consistent with the basic principles of European law.

Please note:

This decision, directly, only  applies  to social network operators and consequently also to other hosting providers. However, there are remarkable consequences beyond that: Providers do not have to set up expensive filtering systems - consequently, users will not be burdened with such costs. For the holders of intellectual property rights and their copyright collecting societies, the situation remains as it is now: They will have to investigate and prove any infringements of rights and take appropriate measures according to the general provisions.

Dr. Christian Berger
avocado rechtsanwälte partnerschaft
schillerstrasse 20
d-60313 frankfurt am main
t +49 69 91 33 01 131
c.berger@avocado-law.com
www.avocado-law.com


For more information please visit www.avocado-law.com

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