INFORMATION SOCIETY : COURT CLARIFIES POSITION ON FIGHT AGAINST ILLEGAL DOWNLOADING.

Asking an internet provider to establish a system to filter all electronic communications transiting via its services - at its own cost and without a limit in time - in order to prevent the illegal downloading of files is contrary to Community law, the EU Court of Justice ruled, on 24 November 2011 (Case C-70/10). Indeed, such an injunction is incompatible with Directive 2003/31/EC on e-commerce, as well as with fundamental rights. This clarification was favourably received by the European Commission, according to one of its spokespersons.

THE CASE

The case started in 2004 when SABAM - the Belgian society in charge of authorising the use by third parties of musical works by authors, composers and editors - discovered that customers were using the services of its internet provider, Scarlet Extended SA, to illegally download works that had been taken from its repertoire via peer-to-peer networks.

On 29 June 2007, at the behest of SABAM, the Court of First instance of Brussels ordered Scarlet to stop these copyright infringements by installing peer-to-peer software to prevent the sending or receiving by its clients of electronic files containing SABAM works.

Scarlet lodged an appeal with the Court of Appeal of Brussels, saying that this injunction is in reality a general obligation to monitor communications. And such an obligation is contrary to the directive on e-commerce and the directive on fundamental rights. The Court of Appeal decided to refer the case to the ECJ in January 2010.

THE RULING

In its ruling, the ECJ recalled that the holders of the copyright can ask for a judicial ruling against the internet providers when their services are being used by third parties for purposes that are contrary to their rights. This right for copyright holders is laid out in Directive 2001/29/EC on copyright and in Directivea2004/48/EC on the enforcement of intellectual property rights. Nonetheless, both of these directives provide that such injunctions must not affect some measures of the directive on e-commence, namely Article 15...