ECJ blocks bid to force social networks to monitor users

The rights of web businesses and users trump those of copyright holders when it comes to filtering content, the ECJ has found
Written by Tom Espiner, Contributor

Courts in Europe cannot order social networks to filter out copyright-infringing content posted by their members, the European Court of Justice has said.

European Court of Justice

Courts in Europe cannot order social networks to filter out copyright-infringing content posted by their members, the European Court of Justice has said. Photo credit: Gwenaël Piaser/Flickr

In a ruling on Thursday, the court said such filtering would infringe on the data-protection rights of those members. The decision came in a case brought by Belgian rights-holder group Sabam, which wanted to block the exchange of pirated material on European social network Netlog.

"The national court concerned would not be respecting 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," the judges said in their ruling.

If filtering was imposed, businesses would have to bear the high costs of a monitoring system, and members would have to be identified and have their content monitored, in contravention of European laws, the judges said.

Their ruling echoes another made by the European Court of Justice (ECJ) November, in which the judges said ISPs cannot be forced to block unauthorised file-sharing from their networks. That case was also brought by Sabam, against Belgian ISP Scarlet.

The decision, which applies to UK courts as well as those in the other 26 EU member states, was welcomed by campaign group Privacy International.

"It's really good to see a second ruling by the ECJ finding rights to privacy, freedom and e-commerce above those of rights holders," said Privacy International campaigner Alex Hanff. "Hopefully the entertainment industry will have to look for [copyright] solutions to bring it into the 21st century."

Sabam's request

The case dates back to June 2009, when Sabam sent Netlog a cease-and-desist letter asking it to block the alleged exchange of copyrighted material by its members, having failed to get the social networrk to agree to pay Sabam a fee for the file-sharing.

Sabam then had Netlog summoned before the Court of First Instance in Brussels, asking for an injunction to stop Netlog users from making music and audio files available to each other. It also asked for the court to impose a penalty of €1,000 (£830) per day in any delay to the court order.

Netlog argued that complying with Sabam's request would mean it would have to generally monitor its users at its own cost for an unlimited period. The case was eventually referred to the ECJ for guidance on how to proceed.

On Thursday, the ECJ said that the rights of copyright holders had to be balanced against the rights of businesses and users. It considered three EU directives: one concerning electronic commerce and two concerning intellectual property. It found these laws precluded a national court ordering content filtering by a hosting service provider.

The judges said they also considered the ECJ's ruling on the Scarlet case last year when deciding on the Netlog issue. Sabam said it was not surprised by the latest decision, given the outcome of the Scarlet case.

"Sabam endeavours to define appropriate alternative measures that take this case law of the European Communities into consideration, with a view to protecting the authors and to managing their works efficiently," the rights-holder group said in a statement (PDF).

The European Internet Service Providers' Association (EuroISPA) said the ECJ had struck "a blow for internet freedom".

"Hosting providers cannot be required to go searching for questionable material so as to suppress content that nobody has ever complained about," EuroISPA said in a statement. "This ruling gives greater legal certainty to internet providers and ensures protection for the right to publish content without prior censorship."

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