ECJ’s stance on hosting providers’ duties and filtering systems

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Today the European Court of Justice has issued its decision on the case C- 360/10 SABAM (Societè belge des auteurs, compositeurs et editeurs SCRL) v. Netlog NV. Pursuant to its decision of November 24, 2011 on the case C- 70/10 (SABAM v. Scarlet Extended SA) which concerned an access-provider, the ECJ has stated that the owner of a social network, in quality of hosting provider, cannot be bound – by means of an order issued by a judicial authority of a Member State – to install a general filtering system having the purpose to prevent the unlawful circulation of audio-visual contents on its platform.

Today decision confirmed that the adoption of a general filtering system is prohibited under EU Law since such filtering systemapplies, as a preventive measure: (i) to all users of the hosting provider; (ii) to all the information and contents stored by the users on the servers of the hosting provider (iii) for an unlimited period of time and (iv) at exclusive expense of the hosting providers.

The ECJ, as in its previous decision, has faced different issues involved in the possible adoption of filtering systems (i.e. hosting provider liability, copyright protection, data protection, freedom of enterprises).

Hereunder  the key-points of the ECJ’s decision:

1) Filtering systems and fundamental rights of users

  • according to Enforcement directive (directive 2004/48/EC) national Courts could adopt precautionary measures towards hosting providers in order to prevent infringements of intellectual property rights made by the users of the latter. Such measures must be put in place in accordance with article 15 of the E-commerce directive (Directive 2000/31/EC) which stated that hosting providers are not due to a general and preventive control over contents shared by its users through their services;
  • the protection of intellectual property rights on the internet (as established by the directives 2001/29/EC and 2004/48/EC) cannot be considered unrelated to the legal framework on data protection (Directive 95/46/EC) and information society’s services (Directive 2000/31/EC);
  • as a consequence, such measures cannot impose an active, preventive and general monitoring to hosting providers over all the contents shared by their users;
  • those measures must guarantee a fair and effective balance between intellectual property rights and fundamental rights of users involved, such as privacy and freedom of information;
  • as a consequence, such measures cannot impose the adoption of filtering’s systems by which it is possible and necessary to collect users’ personal data and information to hosting providers;
  • such measures must be suitable to distinguish between licit and illicit contents and information, otherwise they could compromise the fundamental right of freedom of information;

2) Filtering systems and fundamental right of hosting providers

  • Finally those measures must guarantee an effective balance between intellectual property rights and fundamental rights of the involved hosting providers, such as their freedom of enterprise. Indeed, according to ECJ, the adoption of a costly, complicated and permanent filtering system at the hosting providers’ own expense would result a serious infringement “[…] of the freedom of hosting service provider to conduct its business” (see point 46).

The full text of the decision is available here.

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