Privacy & Cybersecurity Law Blog

On February 16, 2012, the European Court of Justice held in the SABAM vs. Netlog case (C-360/10) that imposing an obligation on social networks to install a “general filtering system” to prevent all users from sharing copyrighted music is disproportionate to the extent that such filters may infringe on user privacy rights or block lawful communications. SABAM, a Belgian copyright association, had filed an injunction against social network provider Netlog that would have required Netlog to install filtering systems to prevent copyright infringements by Netlog users. The Belgian court deciding on the injunction requested a preliminary ruling from the ECJ.

With regard to social networks using “content filtering systems” to prevent copyright infringement, the Court’s decision indicates that such use may be permissible to the extent that it respects:

• Freedom to conduct business: the social network provider should not be forced to install a complicated, costly, permanent computer system at its own expense (this would violate EU Enforcement Directive 2004/48, which requires that measures to enforce intellectual property rights should not be unnecessarily complicated or costly);
• User privacy and data protection rights: filtering systems should not allow the identification, systematic analysis or processing of information connected with user profiles created on the social network; and
• Freedom of information: filtering systems should be designed to be able to distinguish between unlawful content and lawful content to avoid blocking lawful communications.

This ECJ ruling confirms its earlier decision in the SABAM vs. Scarlet case (C-70/10) that an ISP cannot be forced to install a “general peer-to-peer filtering system” to prevent copyright-infringing file sharing. In both cases, the Court was asked to answer a preliminary question being considered by a national court concerning a specific type of filtering system. Given that the filtering system at issue proved to be very broad and did not comply with applicable privacy and data protection requirements, the ECJ’s SABAM decisions should not be read to apply to all filtering systems per se.

View a copy of the SABAM vs. Netlog case.