In its ruling of the 24th of November, in the case Scarlet Extended SA v SABAM (C-70/10), the Court of Justice of the European Union (CJEU) stated that European Law precludes an injunction made against an internet service provider which requires it to install a system for filtering all electronic communications passing via its services, which applies indiscriminately to all its customers, as a preventive measure, exclusively at its expense and for an unlimited period.
Before the Belgian national Courts, SABAM called for an injunction against the Scarlet Company which would require the installation of a filtering system 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 purpose of blocking the transfer of files, the sharing of which infringes several copyrights.
According to the Court of Justice, the right to intellectual property, whose protection is enshrined in the Charter of Fundamental Rights of the Union, is not an absolute right.
Moreover, the injunction imposing the installation of the contested filtering system would result in a serious infringement of the freedom of the service provider concerned to conduct its business since it would require it to install a complicated, costly, permanent computer system at its own expense.
Furthermore, the effects of the requested injunction in this case may also infringe the fundamental rights of that service provider’s customers, namely their right to protection of their personal data and their freedom to receive or impart information, which are rights safeguarded by the Charter of Fundamental Rights of the European Union.
In other words, it is necessary to ensure a fair balance between, on the one hand, the intellectual property rights, and on the other, the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information.
In this case, according to the Court of Justice, the injunction requiring the installation of the contested filtering system breaks this balance and, consequently, is contrary to European Law.
