European Court of Justice rules against filtering (again)

In a re-enactment of last November’s Sabam v Scarlet, the ECJ has ruled against indiscriminate filtering by service providers again, but this time in a case regarding social networks. In Sabam v Netlog (C‑360/10), the Belgian collecting society Sabam sued a social network site named Netlog, based in Ghent, attempting to obtain an injunction ordering it to install filtering software in its network. The site fought the injunction, and much as its predecessor case, it made it all the way to the ECJ.

In first instance, Netlog alleged that installing filtering software would impose a general obligation to monitor, which is prohibited in accordance to the Belgian transposition of the E-commerce Directive 2000/31, and the Information Society Directive 2001/29. In other words, Netlog is an intermediary, a service provider which has certain immunities from liability, and to ask it to become a host would not only affect those immunities, but is not allowed by law. Just as in the previous case, the Belgian court referred the case to the ECJ with the following question:

“‘Do Directives 2001/29 and 2004/48, in conjunction with Directives 95/46, 2000/31 and 2002/58, construed in particular in the light of Articles 8 and 10 of the European Convention on the Protection of Human Rights and Fundamental Freedoms [signed in Rome on 4 November 1950], permit Member States to authorise a national court, before which substantive proceedings have been brought and on the basis merely of a statutory provision stating that “[the national courts] may also issue an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right”, to order a hosting service provider to introduce, for all its customers, in abstracto and as a preventive measure, at its own cost and for an unlimited period, a system for filtering most of the information which is stored on its servers in order to identify on its servers electronic files containing musical, cinematographic or audio-visual work in respect of which SABAM claims to hold rights, and subsequently to block the exchange of such files?’”

The result is not surprising, as the facts are very similar to the Scarlet case. Talking about the rules set out in various Directives which allows some sort of filtering system to be placed, the ECJ states:

“33. [...] Consequently, those rules must, in particular, respect Article 15(1) of Directive 2000/31, which prohibits national authorities from adopting measures which would require a hosting service provider to carry out general monitoring of the information that it stores (see, by analogy, Scarlet Extended, paragraph 35).
34      In that regard, the Court has already ruled that that prohibition applies in particular to national measures which would require an intermediary provider, such as a hosting service provider, to actively monitor all the data of each of its customers in order to prevent any future infringement of intellectual-property rights. Furthermore, such a general monitoring obligation would be incompatible with Article 3 of Directive 2004/48, which states that the measures referred to by the directive must be fair and proportionate and must not be excessively costly (see Scarlet Extended, paragraph 36).”

There is not much to comment here, other than this is further evidence that content industries want to cripple intermediary immunity as soon as possible, as they are going to continue getting similar results if they try to impose orders on ISPs and other online services. This is why TPP contains such an attack on ISP liability rules, as I commented in my last post.

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