No Surprise: EU Law Rules Out General Monitoring Obligation

Author:Mr Tobias Jehoram, Vivien Rörsch and Douwe Groenevelt
Profession:De Brauw Blackstone Westbroek N.V.

On Thursday 24 November, the European Court of Justice ("ECJ") rendered its decision in Scarlet v Sabam (C-70/10). The decision is in line with the Opinion of the Advocate General Cruz Villalón and therefore holds few surprises.

The case centers on questions referred by the Brussels Court of Appeal to the ECJ regarding Scarlet, an Internet Service Provider ("ISP"). Scarlet was ordered by a Belgian court to make it impossible for its customers to share files that infringe rights held by members of SABAM, the Belgian Society of Authors, Composers and Publishers.

The ECJ held that EU law rules out the possibility for a national court to impose an injunction that requires ISPs to install a filtering system:

(i) that checks all electronic communications passing via its services (in particular p2p traffic);

(ii) which applies indiscriminately to all its customers;

(iii) as a preventive measure;

(iv) exclusively at its own expense; and

(v) for an unlimited period of time.

It is not surprising that the ECJ considers such a broad injunction in fact as a general monitoring obligation, which is explicitly prohibited by Art 15 of the E-Commerce Directive. Furthermore, the ECJ ruled that the effects of the filtering injunction could also infringe fundamental rights safeguarded by the Charter of Fundamental Rights of the EU, in particular the right to conduct business, the right to protection of data and the freedom to receive or disseminate...

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