In a case referred to it by the Brussels Court of First Instance, the European Court of Justice, in a decision dated 16 February 2012, has held that the Belgian copyright management company, SABAM, was not entitled to require Netlog, a social network operator very popular in Flanders, to filter all data exchanged on its network in order to identify any illegal copying of matter protected by copyright.

The decision is in line with a decision already taken by the European Court of Justice in the Scarlet case in which it held that an internet access provider had no general duty to control the data introduced and exchanged via its servers.

The Court found that the imposition of such a surveillance duty would be contrary to a specific provision in the European Directive on Electronic Commerce. The Court also found that such a duty would violate privacy rights, freedom to trade and rights to information, all of which are protected by the Charter of Fundamental Rights of the European Union.  In line with its previous case-law, the Court also held that a fair balance that had to be struck between copyright and the protection of fundamental rights and found that the imposition of a general duty of surveillance would be disproportionate.

The Decision of the European Court does however recognize copyright as being one of the fundamental rights protected by the European Treaty. Thus, whilst it excluded the possibility of a general duty to control and survey matter being introduced or exchanged on the web, its decision does not mean that copyright management companies have no duties whatsoever with regard to the violation of intellectual property rights. In particular if a violation of copyright or another intellectual property right is specifically identified and notified to the social network operator there remains a duty for the operator to remove the material from its servers.

The question remains however as to whether copyright management societies have the means to screen all the material being introduced onto the web and it is probable that most of the complaints and initiatives against social network operators and internet access providers will in fact originate directly from competitors or injured parties.

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Charles Price
Luc  Van Caneghem