No Big Brother required: ECJ extends "no duty to monitor" protection to social networks

The Court of Justice of the European Union has published its judgment in the case of SABAM v Netlog, in which it has ruled that the owner of an online social network cannot be obliged to install a general filtering system in order to prevent the unlawful use of protected works.

SABAM, a management company representing copyright holders in Belgium, had claimed in the case that Netlog, an online social networking platform, allowed users to share musical and audio-visual content without SABAM's consent and without payment of a licence fee. SABAM therefore sought an injunction requiring Netlog to stop making such content available and the Court of First Instance in Belgium referred the matter up to the European Court of Justice.

The ECJ ruled that the imposition of such an injunction (which would require Netlog to monitor/filter content on its network) was precluded by the eCommerce Directive, the Copyright Directive and the IP Enforcement Directive. The judgment effectively extends the "no duty to monitor" protection available to ISPs under the eCommerce Directive to social network owners, via their status as "hosting service providers" (rather than internet service providers) within Article 14 of that Directive.

The ECJ's judgment also largely followed the Scarlet Extended judgment from 2011. The ECJ considers that the owner of an online social network cannot be obliged to install a general filtering system in order to prevent the unlawful use of copyright works. Such an obligation would be contrary to the provisions of the eCommerce Directive prohibiting the general monitoring of information. The court went to further state that a balance needed to be struck between the protection of copyright on the one hand, and the freedom to conduct business, the right to protection of personal data, and the freedom to receive or impart information, on the other hand.

The judgment will be welcomed by other online social networks who will now have comfort that they too fall within the protection of the eCommerce Directive.

A copy of the judgment is available here.