The EU Court of Justice ruled today that ISPs have no obligation to filter infringing content. The litigation was brought by Scarlet Extended SA, an Internet Service Provider, and SABAM, a Belgian management company, based upon the allegation that protected works were being posted on the Internet without permission or the payment of royalties.
The question presented was summarized by the Court as follows:
By its questions, the referring court asks, in essence, whether Directives 2000/31, 2001/29, 2004/48, 95/46 and 2002/58, read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction imposed on an ISP to introduce a system for filtering
– all electronic communications passing via its services, in particular those involving the use of peer-to-peer software;
– which applies indiscriminately to all its customers;
– as a preventive measure;
– exclusively at its expense; and
– for an unlimited period,
which is capable of identifying on that provider’s network the movement of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold intellectual property rights, with a view to blocking the transfer of files the sharing of which infringes copyright (‘the contested filtering system’).
Ultimately, the Court concluded that there was no general monitoring duty, particularly one that would require “general monitoring” of all communications, particularly where, as here, to do so would require active observation of all electronic communications conducted on the network of the ISP.
The full text of the decision can be found here.