INTELLECTUAL PROPERTY : GENERAL ONLINE FILTERING SYSTEM: COURT CONFIRMS CASE LAW.

A web hosting service provider cannot be obliged to install a general filtering system, covering all the information stored on its servers by users of its services, in order to prevent the unlawful use of musical and audiovisual work, the EU Court of Justice ruled, on 16 February (Case C-360/10). Such an injunction is incompatible with Directive 2000/31/EC on e-commerce and with the fundamental rights. Thus, the ECJ confirms its 24 November 2011 ruling, this time on an internet access provider rather than on a hosting service provider. The ECJ had ruled that it was contrary to EU law to oblige an internet service provider to put in place a general filtering system to prevent illegal downloading and thus to protect intellectual property rights (Case C-70/10).

The current case opposes SABAM - the Belgian society in charge of authorising the use by third parties of musical works by authors, composers and editors - and Netlog NV, an online social networking platform.

SABAM became aware that Netlog's social network enables all users to make use, by means of their profile, of the musical and audiovisual works in SABAM's repertoire. SABAM requested that Netlog sign an agreement to pay a fee for the use of said repertoire. Then, on 23 June, SABAM had Netlog summoned before the Court of First Instance of Brussels, requesting inter alia that Netlog be ordered immediately to cease unlawfully making available musical or audiovisual works from SABAM's repertoire. Netlog submitted that granting SABAM's injunction would be tantamount to imposing a general obligation to monitor, which is prohibited by the e-commerce directive.

The ECJ recalled that the holders of intellectual property rights can ask for a judicial ruling against internet providers when their services are being used by third parties for purposes that are contrary to their rights. This right is laid out in Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society and Directive 2004/48/EC on the enforcement of intellectual property rights. Notwithstanding, both directives provide that such injunctions must not affect some measures of the directive on e-commerce, namely Article 15...