ECJ Scarlet vs SABAM: “General monitoring obligation for ISPs is not compatible with EU law”

Today, the European Court of Justice has decided in a preliminary ruling that EU law precludes a national court from ordering an internet service provider (ISP) to install a general filtering system with the aim of preventing the illegal downloading of files.

Such an injunction was requested by the Belgian collection society SABAM, in a dispute with ISP Scarlett. However, this filtering order does not comply with the E-commerce Directive.

In its judgment delivered today, the Court points out, first of all, that holders of intellectual property rights may apply for an injunction against intermediaries, such as ISP, whose services are being used by a third party to infringe their rights.

However, injunctions must respect the limitations arising from European Union law, such as, in particular, the prohibition laid down in the E-Commerce Directive (2000/31/EC) under which national authorities must not adopt measures which would require an internet service provider to carry out general monitoring of the information that it transmits on its network.

In this regard, the Court finds that the monitoring injunction in the case between SABAM and Scarlet would require Scarlet to actively monitor all the data relating to each of its customers in order to prevent any infringement of intellectual property rights. Such a general monitoring request is incompatible with the E-Commerce Directive and with the fact that the right to intellectual property is not to be regarded as legally absolute and inviolable.

A more detailed analysis of this landmark judgement will follow later on Future of Copyright.

Source: The Court of Justice of the European Union, Luxembourg; Nov 24, 2011, Case C-70/10 (Scarlet / SABAM)