H2O

Scarlet (SUMMARY)

Case C-70/10

Scarlet Extended SA

v

Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM)

(Request for a preliminary ruling from the cour d’appel de Bruxelles)

(Information society – Copyright – Internet – ‘Peer-to-peer’ software – Internet service providers – Installation of a system for filtering electronic communications in order to prevent file sharing which infringes copyright – No general obligation to monitor information transmitted)

Summary of the Judgment

Approximation of laws – Information society – Copyright and related rights – Protection of personal data in the electronic communications sector – Injunction ordering an internet service provider to install a system for filtering all electronic communications, indiscriminately applicable to all its customers as a preventive measure, exclusively at its expense, and for an unlimited period, to prevent intellectual property infringements – Unlawful

(Charter of Fundamental Rights of the European Union, Arts 8 and 11; European Parliament and Council Directives 95/46, 2000/31, Art. 15(1), 2001/29, 2002/58 and 2004/48, Art. 3(1))

Directives 2000/31, on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, 2001/29, on the harmonisation of certain aspects of copyright and related rights in the information society, 2004/48 on the enforcement of intellectual property rights, 95/46, on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and 2002/58, concerning the processing of personal data and the protection of privacy in the electronic communications sector, read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction addressed to an internet service provider ordering it to introduce a system for filtering

– all electronic communications passing via its services, in particular those involving the use of ‘peer-to-peer’ software;

– which applies indiscriminately to all its customers;

– as a preventative measure;

– exclusively at its expense; and

– for an unlimited period,

capable of identifying on that provider’s network the movement of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold intellectual property rights, with a view to blocking the transfer of files the sharing of which infringes copyright.

Such an injunction addressed to that internet service provider would oblige it actively to monitor all the data relating to each of its customers in order to prevent any future infringement of intellectual-property right, thus requiring general monitoring prohibited by Article 15(1) of Directive 2000/31. It would, moreover, result in a serious infringement of the freedom of the internet service provider concerned to conduct its business since it would require that provider to install a complicated, costly, permanent computer system at its own expense, which would also be contrary to the conditions laid down in Article 3(1) of Directive 2004/48, which requires measures to ensure the respect of intellectual-property rights not to be unnecessarily complicated or costly. Therefore such an injunction would not meet the requirement that a fair balance be struck between, on the one hand, the protection of the intellectual-property right enjoyed by copyright holders, and, on the other hand, that of the freedom to conduct business enjoyed by operators such as internet service providers. The effects of such an injunction would not be limited, moreover, to those internet service providers, as the filtering system may also infringe the fundamental rights of their customers, namely, their right to protection of their personal data and their freedom to receive or impart information, those rights being safeguarded by Articles 8 and 11 of the Charter of Fundamental Rights of the European Union, respectively. First, the injunction would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data, for they allow those users to be precisely identified. Second, the injunction would be likely to prejudice freedom of information since that system would be unlikely to distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications.

(see paras 40, 48-52, operative part)

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Giancarlo Frosio, PhD

Senior Lecturer

CEIPI, Université de Strasbourg

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