On 16 February 2012, the Court of Justice of the European Union (“ECJ”) handed down its preliminary ruling in Case C-360/10, Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (“Sabam”) against Netlog NV (“Netlog”). The ECJ judgment denied Sabam the possibility to impose a blanket filtering obligation on Netlog.
Sabam is the Belgian collecting society for authors, composers and publishers of musical works. Netlog hosts an online social network service. On 23 June 2009, Sabam initiated cease-and-desist proceedings against Netlog before the President of the Court of First Instance of Brussels. Sabam applied for an order to make Netlog cease all illicit making available of musical and audiovisual works from Sabam’s repertoire. Netlog argued before the court that such an order would amount to a general monitoring obligation, which is precluded by Article 21 §1 of the Law of 11 March 2003 regarding specific legal aspects of information society services (Wet betreffende bepaalde juridische aspecten van de diensten van de informatiemaatschappij / Loi sur certains aspects juridiques des services de la société de l'information), which implements Article 15 (1) of Directive 2000/31 of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (“e-commerce Directive”). The Court of First Instance decided to halt the proceedings and refer a question to the ECJ for a preliminary ruling.
In particular, the ECJ was requested to balance the copyright holder’s right to obtain a judicial order against an intermediary whose services are used to infringe copyright against the safe harbour for hosting service providers in Article 15 (1) of the e-commerce Directive and the fundamental rights of the affected parties.
The ECJ held that Netlog could not be ordered to implement a filtering system for information stored by its users which applies to all users in a preventive manner, which is not limited in time, and for which Netlog has to bear the cost.
In the judgment, the ECJ referred to and cited extensively from its recent judgment in Sabam v. Scarlet (See, this Newsletter, Volume 2011, No. 11, p. 3). In Sabam v. Scarlet, Sabam requested an order to block all peer-to-peer sharing of files infringing the copyright of works managed by it. Still, the role of the intermediary is different in both cases. Scarlet was an internet service provider (and thus profited from the “mere conduit” status under Article 12 of the e-commerce Directive) while Netlog qualifies as a hosting provider under Article 14 of the e-commerce Directive. Nevertheless, neither activity can give rise to a general monitoring obligation under Article 15 of the e-commerce Directive. It therefore comes as no surprise that the outcome in this case reflects the judgment in Sabam v. Scarlet.
