On 24 November 2011, the European Court of Justice (“ECJ”) ruled that European law precludes the imposition of an injunction against internet service providers requiring it to install a general filtering system for the purpose of preventing illegal downloading activities.
In 2004, the underlying case was brought before the Court of First Instance of Brussels by SABAM, the Belgian collecting society for authors, composers and editors of musical works. SABAM initiated interlocutory proceedings against Scarlet, an internet service provider which provides its customers with internet access, and sought an injunction to be issued against the latter, ordering it to take measures by installing a filtering system to end copyright infringements committed by its customers. Such filtering system would have to filter preventively all electronic communications of all customers of Scarlet at its own expense for an unlimited period in time and would have to identify and block electronic files that infringe copyrights which SABAM represents. After having established that the copyrights represented by SABAM were in this case infringed, per judgment of 29 June 2007, the Court of First Instance ordered Scarlet to make it impossible for its customers to send or receive illegal copies of musical works which were copyright protected.
Scarlet appealed to the Court of Appeal of Brussels, arguing, among other things, that such injunction was contrary to a number of European Directives, including Directive 2000/31 on certain legal aspects of information ICT Law Newsletter - Number 43 – April 2012 society services, in particular electronic commerce and Directives 2001/29, 2004/48, 95/46 and 2002/58. Consequently, the Court of Appeal referred the question on interpretation of these Directives to the ECJ for a preliminary ruling.
In its judgment, the ECJ first underlined the fact that holders of intellectual property rights are entitled to apply for injunctions against intermediaries if the services of these intermediaries are used to infringe on their intellectual property rights. The Court pointed out that there are a number of restrictions that these injunctions must take into account, such as the restriction provided in Directive 2000/31 which forbids national authorities from adopting measures which allow internet service providers to monitor all information that is transmitted over their network. In light of this prohibition, the ECJ found that an injunction as such demanded by SABAM would qualify as this kind of obligation to monitor and is thus incompatible with Directive 2000/31. The Court also added that the right to an intellectual property may not be regarded as legally absolute and inviolable. (LL)
The case can be found on http://curia.europa.eu.