CJEU - C‑360/10 - SABAM

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CJEU - C‑360/10 SABAM
Cjeulogo.png
Court: CJEU
Jurisdiction: European Union
Relevant Law:
Directive 95/46/EC
Directive 2000/31/EC
Directive 2001/29/EC
Directive 2004/48/EC
Directive 2002/58/EC
Decided: 16.02.2012
Parties: SABAM
Netlog NV
Case Number/Name: C‑360/10 SABAM
European Case Law Identifier: ECLI:EU:C:2012:85
Reference from: CFI Brussels (Belgium)
Language: 24 EU Languages
Original Source: Judgement
Initial Contributor: Frederick Antonovics

The CJEU held that national courts could not grant injunctions that would require hosting service providers to install a general filtering system exclusively at its own expense. It therefore struck down SABAM's claim for such an injunction to be issued against Netlog.

English Summary[edit | edit source]

Facts[edit | edit source]

SABAM is a management company which represents authors, composers and publishers of musical works. Netlog ran an online social networking platform.

On their Netlog profile, users could keep a diary, indicate their hobbies and interests, show who their friends are, display personal photos or publish video clips. However, SABAM claimed that the social network offered all users the opportunity to make use, by means of their profile, of the musical and audio-visual works in SABAM’s repertoire, making those works available to the public in such a way that other users of that network could access them without SABAM’s consent and without Netlog paying it any fee. SABAM first unsuccessfully tried to negotiate a licensing agreement with the social network, then gave it a notice that it should give an undertaking to cease and desist from making available to the public musical and audio-visual works from SABAM’s repertoire without the necessary authorisation - also without results.

Given the lack of action taken by the social network, SABAM had it summoned before the Brussels Court of First Instance (rechtbank van eerste aanleg te Brussel) in injunction proceedings under Article 87(1) of the Law of 30 June 1994 on copyright and related rights. It requested that Netlog be ordered immediately to cease unlawfully making available musical or audio-visual works from SABAM’s repertoire and to pay a penalty of €1000 for each day of delay in complying with that order. The social network submitted that granting SABAM’s injunction would (1) effectively impose on Netlog a general obligation to monitor, which was prohibited by Article 15(1) of Directive 2000/31 and (2) introduce, at Netlog's own cost and for an unlimited period, a system for filtering most of the information which is stored on its servers in order to identify and block electronic files containing musical, cinematographic or audio-visual work in respect of which SABAM claims to hold rights.

The rechtbank decided to stay the injunction proceedings and refer the following question to the CJEU:

"Do Directives 2001/29 and 2004/48, in conjunction with Directives 95/46, 2000/31 and 2002/58, construed in particular in the light of Articles 8 and 10 of the European Convention on the Protection of Human Rights and Fundamental Freedoms [signed in Rome on 4 November 1950], permit Member States to authorise a national court, before which substantive proceedings have been brought and on the basis merely of a statutory provision stating that “[the national courts] may also issue an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right”, to order a hosting service provider to introduce, for all its customers, in abstracto and as a preventive measure, at its own cost and for an unlimited period, a system for filtering most of the information which is stored on its servers in order to identify on its servers electronic files containing musical, cinematographic or audio-visual work in respect of which SABAM claims to hold rights, and subsequently to block the exchange of such files?"

Holding[edit | edit source]

The CJEU first essentially restated its judgment in Scarlet Extended, finding it had to determine whether the injunction would require Netlog to carry out general monitoring of all the information that it stores. It then considered the requirements that stem from the protection of the applicable fundamental rights, namely SABAM's copyright, referring to the judgment in Promusicae to highlight that rights linked to intellectual property must be balanced against the protection of other fundamental rights.

It then carried out this balancing exercise in the context of the case at hand, finding that because the injunction would result in a serious infringement of Netlog's freedom to conduct its business since it would require the company to install a complicated, costly, permanent computer system at its own expense, which would also be contrary to the conditions laid down in Article 3(1) of Directive 2004/48, which requires that measures to ensure the respect of intellectual-property rights should not be unnecessarily complicated or costly.

To come to this conclusion, it took into account that the contested filtering system would (1) involve monitoring all or most of the information stored by the hosting service provider concerned, (2) with no limitation in time, (3) be directed at all future infringements and (4) be intended to protect not only existing works, but also works that have not yet been created at the time when the system is introduced.

Moreover, it held "the effects of that injunction would not be limited to the hosting service provider, as the contested filtering system may also infringe the fundamental rights of that hosting service provider’s service users, namely their right to protection of their personal data and their freedom to receive or impart information, which are rights safeguarded by Articles 8 and 11 of the Charter respectively."

As a result, the CJEU held that:

"Directives:

  • 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce);
  • 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society; and
  • 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights,

read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding a national court from issuing an injunction against a hosting service provider which requires it to install a system for filtering:

  • information which is stored on its servers by its service users;
  • which applies indiscriminately to all of those users;
  • as a preventative measure;
  • exclusively at its expense; and
  • for an unlimited period,

which is capable of identifying electronic files containing musical, cinematographic or audio-visual work in respect of which the applicant for the injunction claims to hold intellectual property rights, with a view to preventing those works from being made available to the public in breach of copyright."

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