The plaintiffs (who are book authors) sued some websites for copyright infringement because those websites were copying and communicating excerpts of their book without permission. These excerpts appeared in Google’s results. Upon plaintiffs’ request, Google removed the corresponding URLs. However, the plaintiffs were not satisfied and took the case to court, seeking the court to (i) order Google Inc. and Google Belgium to remove from their websites any links to web pages that contain infringing content and to prevent any further recurrence during 18 months starting from the date of the ruling, under penalty of daily fines, and (ii) award damages to the plaintiffs.

In its ruling of 4 December 2013, the Court of First Instance of Brussels made reference to the European Court of Justice’s decision which was rendered on 23 March 2010 for the cases C-236/08, C-237/08 and C-238/08 and in which it found that Google’s search engine activity is purely technical, automatic, and passive, and that Google has neither knowledge nor control over the information transmitted or stored. The Brussels Court ruled that, as a consequence, such activity acts as a mere conduit in the sense of Article 18 of the Belgian Act of 11 March 2003 on certain legal aspects of information society services (the e-commerce Act) implementing into Belgian law the e-commerce Directive 2000/31/EC of 8 June 2000. Furthermore, in the current case, Google has not been held liable because it (i) does not initiate the transmission, (ii) does not select the receiver of the transmission, and (iii) does not select or modify the information contained in the transmission. Also, once notified about the infringing content, Google, each time and in a reasonable timeframe, disabled access to the information which was being displayed unlawfully. Therefore, since the plaintiffs did not succeed in reporting evidence of any negligence committed by Google, the Court rejected their damages claim. The Court added that the general rule of tort liability set out in Article 1382 of the Belgian Civil Code does not apply because of the applicable special liability regime under the e-commerce Act.

The Court also dismissed the plaintiffs’ demand to impose on Google a temporary monitoring obligation of all URLs used, to date or within the next 18 months, by the litigious websites to prevent any future copyright infringement since it would constitute a violation of Article 21(1) of the e-commerce Act (which implements Article 15(1) of the e-commerce Directive) which reads: “the service providers shall not have a general obligation to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity”. Moreover, the Court found that a search engine is not able to assess the content of a web page and to make—on its own initiative—a notice about a copyright violation.

Although Article 21 of the e-commerce Act further says that the prohibition of any general monitoring obligation “does not exclude the right of the competent judicial authorities to impose a temporary monitoring obligation in a specific case, if an  act  enables  this  possibility”, the  Court  refused  to accommodate the plaintiffs’ demand under the Belgian Copyright Act (BCA). According to the Court, the cease-and- desist proceedings set out in Article 86ter of the BCA may not justify any positive injunction of prior monitoring of web content. The Court stressed the fact that the plaintiffs did not invoke any other legal provision to support their demand.

Finally, it is noteworthy to mention that the Court found that it is the web browser—and not the search engine—that displays the web page on the screen of the user, and that the Court dismissed the action with regard to Google Belgium since this local subsidiary of Google Inc. does not operate the search engine’s activity which is at issue in the case being heard.

The decision has not been published.