EU court rules social networks cannot police downloads

In a press statement accompanying its judgement, the court stated that forcing sites to police their network for illegal downloads “would not be respecting the prohibition to impose on that provider a general obligation to monitor nor the requirement that a fair balance be struck between the protection of copyright, 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.”

The case was brought before the ECJ by Sabam, the Belgian national music royalty collecting society, against social network site Netlog. In 2009, Sabam went to the Belgian Court of First Instance to demand that Netlog take action to prevent site-users from illegally downloading songs from its portfolio. It also insisted that Netlog pay a €1,000 fine for every day of delaying in compliance. Netlog legal submission argued that granting Sabam’s injunction would be imposing a general obligation to monitor on Netlog, which is prohibited by the e-commerce directive.

Like other social networking sites Facebook, Twitter and YouTube, Netlog allows users to create a profile through which they keep a diary, link with their friends and display photos or video clips, including copy-righted works.

In its ruling, the court duly cited the e-commerce directive, judging that implementing a filter system would require the host site to work as an active policeman of all files stored on its servers which could hold copyrighted works. Agreeing with Netlog’s submission, it stated that “general monitoring of the information stored on its servers” was “prohibited” by the e-commerce directive.

"Such an injunction would result in a serious infringement of Netlog's freedom to conduct its business since it would require Netlog to install a complicated, costly, permanent computer system at its own expense," the ECJ concluded.

The court added that the right to data privacy and to be able to receive or send information were part of the Charter of Fundamental Rights, with which all EU law must comply.

The ECJ ruling is the latest act in the long-running worldwide saga on the policing of online piracy. In the last fortnight there have been mounting protests against the controversial Acta treaty, an attempt to establish global rules for policing counterfeit trade online.

Although negotiations on Acta began in 2006, with 22 of the EU’s 27 Member States having signed up to it, five countries, including Germany and Poland, have halted the accession process following rising public pressure. Public protests swept across Europe’s streets last weekend in protest against the treaty.

Rights-holders and companies want internet service providers and technology companies to take action to prevent widespread copyright theft of illegally downloaded films and music.

Technology companies have argued that this would infringe on freedom of speech, internet freedom and be difficult to enforce, while internet campaigners fear that Acta would lead to invasive internet surveillance.

Watch Brussels based protest against the international intellectual property enforcement treaty, acta.