Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM).

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Malenovský
• ECLI: ECLI:EU:C:2011:255
• Date: 14 April 2011
• Docket Number: C-70/10
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

CRUZ VILLALÓN

delivered on 14 April 2011 (1)

Case C‑70/10

Scarlet Extended SA

v

Société belge des auteurs compositeurs et éditeurs (SABAM)

Interveners:

Belgian Entertainement Association Video ASBL (BEA Video),

Belgian Entertainement Association Music ASBL (BEA Music),

Internet Service Provider Association ASBL (ISPA),

(Reference for a preliminary ruling from the cour d’appel de Bruxelles (Belgium))

(Information society – Intellectual property rights – Directive 2004/48/EC – Copyright and related rights – Directive 2001/29/EC – Unlawful downloading on the internet – File sharing via peer-to-peer software – System for filtering electronic communications – Mechanism for blocking files shared in infringement of intellectual property rights – Right to privacy – Protection of personal data – Articles 7 and 8 of the Charter – Article 8 of the ECHR – Directive 95/46/EC – Directive 2002/58/EC – Confidentiality of communications – Right to freedom of expression – Article 11 of the Charter – Article 10 of the ECHR – Liability of intermediary service providers – General obligation to monitor information – Directive 2000/31/EC – State governed by the rule of law – Limitation on rights and freedoms ‘provided for by law’ – Quality of the law – Supremacy of law)

Table of contents

IntroductionI – 4

I – Legal frameworkI – 6

A – European Union lawI – 6

1. Legislation concerning the protection of intellectual propertyI – 7

a) Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information societyI – 7

b) Directive 2004/48 on the enforcement of intellectual property rightsI – 7

2. Legislation concerning the protection of personal dataI – 8

a) Directive 95/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such dataI – 8

b) Directive 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sectorI – 8

3. Legislation concerning electronic commerce: Directive 2000/31I – 9

B – National lawI – 9

II – The facts in the main proceedings and the questions referred for a preliminary rulingI – 10

A – The facts and the main proceedingsI – 10

B – The questions referred for a preliminary rulingI – 12

C – Procedure before the Court of JusticeI – 13

III – AnalysisI – 13

A – Preliminary observationsI – 13

1. Reformulation of the first question: the ECHR and the CharterI – 13

2. Structure of the replyI – 15

3. A four-stage approachI – 16

B – The measure requested (injunction) and the ‘system’ required (filtering and blocking)I – 17

1. The filtering and blocking systemI – 18

a) The ‘filtering’ systemI – 18

b) The ‘blocking’ mechanismI – 20

2. Characteristics of the injunctionI – 20

a) ‘… for an unlimited period …’: the scope ratione temporis of the measureI – 20

b) ‘… all electronic communications, both incoming and outgoing …’: the scope ratione materiae of the measureI – 21

c) ‘… for all its customers …’: the scope ratione personae of the measureI – 21

d) ‘… in abstracto and as a preventive measure …’: the preventive and dissuasive function of the requested measureI – 22

e) ‘… at [its own] cost …’: the burden of the costs of implementing the requested measureI – 23

3. Intermediate conclusionI – 23

C – Qualification of the measure in the light of the directives and of Articles 7, 8 and 11 of the Charter: a ‘limitation’ within the meaning of Article 52(1) of the CharterI – 25

1. ‘… construed in particular in the light of Articles 7 and 8 of the Charter …’: concerning the respect for a private life and the right to protection of personal dataI – 27

a) Protection of personal data (Article 8 of the Charter)I – 28

b) Confidentiality of electronic communications (Article 7 of the Charter)I – 30

2. ‘… construed in particular in the light of Article 11 of the Charter …’: the guarantee of freedom of expression and the right to informationI – 31

3. Intermediate conclusionI – 32

D – The conditions for limitation of the exercise of the rights and freedoms recognised by the Charter and singularly the condition relating to ‘quality of the law’ in particular (Article 52(1) of the Charter)I – 32

E – ‘… on the basis merely of a statutory provision …’: examination of the national legislation in the light of the condition relating to the ‘quality of the law’ (Article 52(1) of the Charter)I – 38

IV – ConclusionI – 42

Introduction

1. This case offers the Court the opportunity to examine in its turn the question of infringement of copyright and related rights on the internet, the unlawful downloading of protected works, a phenomenon commonly known as ‘piracy’ of musical, cinematographic, audiovisual or even literary works, and to take an interest in the campaign undertaken by the holders of those rights or persons entitled under them against what is described as a worldwide scourge. (2) More specifically, it is called upon to adjudicate on a new question, the viability, from the point of view of European Union (also ‘Union’) law, of certain techniques for combating piracy which, although their reliability is not wholly established and they are permanently subject to technological progress and to the evolution of practices, are presented as a possible adequate response to the infringements of intellectual property rights committed daily on ‘the web’.

2. The questions referred to the Court for a preliminary ruling in this case call for an interpretation both of a complex body of provisions of secondary legislation and provisions of primary legislation, more specifically of the Charter of Fundamental Rights of the European Union, (3) in the light of the European Convention for the Protection of Human Rights and Fundamental Freedoms. (4) However, it must be pointed out at once that this Opinion cannot address all the legal queries and technical problems (5) to which the measures at issue give rise. On the basis of the actual formulation of the questions raised by the national court and on the terms in which it sets out the legal and factual circumstances of the case in the main proceedings, I shall attempt to provide it with a useful reply by concentrating on the most fundamental aspects.

3. In that regard, the Court is called upon, principally, to tell the national court explicitly whether, under European Union law, a national court is permitted to adopt a measure such as that requested in the main proceedings, ordering an internet service provider (6) to introduce a system for filtering and blocking electronic communications. However, as the measure thus requested has a scope which is quite different for that ISP, on the one hand, and for the users of the services of that ISP and, more widely, the internet users, on the other hand, I shall have to take this dual perspective into account, even though the first question raised refers very particularly to the rights of users.

4. It must also be stated at the outset that the present case differs from the Promusicae case, (7) although their legal framework and general context show evident similarities. Although the present case requires, as in Promusicae, the reconciliation of the requirements linked to the protection of various fundamental rights, the two cases have differences which, as the national court itself points out, preclude the lessons drawn from the judgment in Promusicae, in particular the principle that there should be a fair balance between the rights it defines, being sufficient to enable it to give a ruling. In Promusicae, in fact, an ISP was asked to disclose, in legal proceedings, the identities and physical addresses of persons identified by their IP addresses, (8) and the date and time of their connection. What was at issue, therefore, was a communication, in a legal context, of data which were known and identified. In the main proceedings, on the other hand, an internet service provider is required to introduce a system for filtering electronic communications and blocking electronic files deemed to infringe an intellectual property right. It is not an interference a posteriori, once an infringement of copyright or related rights has been established, which is required, but an interference a priori, with the aim of avoiding such an infringement and, more specifically, in order to introduce a preventive system to avoid any future infringement of an intellectual property right, (9) in accordance with rules which, as we shall see, are marked by numerous uncertainties.

5. That said, it is nevertheless mainly from the angle of fundamental rights that the examination of the situation at issue in the main proceedings will, naturally enough, be conducted.

I – Legal framework

A – European Union law

6. The Court is asked, principally, about the interpretation of Directives 2001/29/EC (10) and 2004/48/EC, (11) relating to the protection of intellectual property, Directives 95/46/EC (12) and 2002/58/EC, (13)concerning the protection of personal data, and Directive 2000/31/EC (14) on electronic commerce, which have a complex relationship. In the light of that complexity, the presentation of the legal framework of the case will contain only the provisions necessary for an understanding of the main proceedings.

1. Legislation concerning the protection of intellectual property

a) Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society

7. Article 8 of Directive 2001/29, entitled ‘Sanctions and remedies’, is worded as follows:

‘1. Member States shall provide appropriate sanctions and remedies in respect of infringements of the rights and obligations set out in this Directive and shall take all the measures necessary to ensure that those sanctions and remedies are applied. The sanctions thus provided for shall be effective, proportionate and dissuasive.

2. Each Member...