EU Law Prohibits an Injunction Requiring an ISP to Implement Infringement Filtering Technology
Laura McQuade | Bloomberg Law
The European Court of Justice (ECJ) held that European Union law prohibits an injunction requiring an Internet Service Provider (ISP) to install, for an unlimited period and at the ISP’s own expense, a copyright infringement filtering system that applies indiscriminately to all customers. The ECJ found that the injunction, which had been issued by the Brussels Court of First Instance, did not strike the proper balance between protecting intellectual property rights and preserving the freedom to conduct business, the right to protect one’s own personal data, and the right to receive or impart information.
Brussels Court Orders Injunction Requiring Scarlet to Stop All Infringing Activity
Société Belge des Auteurs Compositeurs et Éditeurs (“SABAM”) manages the licensing of musical works. SABAM brought suit against Scarlet Extended SA, an ISP, for copyright infringement because its users were downloading works in the SABAM catalog without authorization via peer-to-peer file sharing systems. The Brussels Court of First Instance issued an injunction ordering Scarlet to stop the infringing activity “making it impossible for its customers to send or receive in any way files containing a musical work in SABAM’s repertoire by means of peer-to-peer software.” Scarlet Extended at ¶ 23. Scarlet appealed to the Brussels Court of Appeal arguing that the injunction violated both Scarlet’s fundamental rights under EU law, as well as the Directive on Electronic Commerce, 2000/31/EC of the European Parliament and of the Council of 8 June 2000.
The Brussels Court of Appeal brought the question to the ECJ in order to determine whether a member state may issue such an injunction. Specifically, the Belgian appellate court questioned whether Directives 2001/29, 2004/48, 95/46, 2000/31 and 2002/58, read in conjunction with Articles 8 and 10 of theEuropean Convention on the Protection of Human Rights and Fundamental Freedoms, precluded the imposition of an injunction requiring an ISP to implement, as a protective measure, filtering technology that: (1) filtered all electronic communications passing via its services; (2) applies indiscriminately to all customers; (3) at the ISPs expense; and (4) for an unlimited period.
ECJ Finds Injunction Violates EU Law
The ECJ stated that although copyright owners may seek, pursuant their own national laws, an injunction against an intermediary whose services are being used to infringe their intellectual property rights, any such injunction must comply with EU law. For example, under Directive 2000/31/EC, which addresses legal issues relating to e-commerce, member states must not require ISPs to engage in general monitoring of the information on its network.
The court acknowledged that the right to protect one’s intellectual property is included in Article 17(2) of the Charter of Fundamental Rights of the European Union, but such right is not absolute and must be balanced with the protection of other fundamental rights. The ECJ reasoned that because the Belgian court’s injunction required Scarlet to prevent any infringements from occurring on its networks, it necessarily required general monitoring of Scarlet’s networks in violation of Directives 2000/31 and 2004/48. The court also determined that such an injunction would violate Scarlet’s fundamental rights in that it was not limited in time, and would require Scarlet to implement a costly, permanent system. The injunction would also infringe Scarlet’s users’ right to exchange information in that it would not distinguish between lawful and unlawful communications. The injunction would also undermine Scarlet’s users’ ability to protect their own personal data becausefiltering would require the processing of IP addresses.
The ECJ concluded that the Belgian court’s injunction did not “respect the requirement that a fair balance be struck between the right to intellectual property, 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.”Scarlet Extended at ¶ 53. The court thus held that Directives 2001/29, 2004/48, 95/46, 2000/31 and 2002/58, in conjunction with the fundamental rights protected under EU law prohibited the injunction against Scarlet.
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