European Court of Justice, Scarlet Extended SA v. Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM), C-70/10, November 24, 2011

(1) The ECJ had to decide whether a Belgian collective rights managment organization (SABAM) could require an internet service provider, namely Scarlet and Tiscali, to install a filtering system with a view to preventing the illegal downloading of files.

(2) The ECJ ruled that EU law must must be interpreted as precluding an injunction made against an internet service provider which requires it to install a system for filtering (i) all electronic communications passing via its services, in particular those involving the use of peer-to-peer software; (ii) which applies indiscriminately to all its customers; (iii) as a preventive measure; (iv) exclusively at its expense; and (v) for an unlimited period, (vi) 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.

(3) An obligation to implement such filtering system, according to the ECJ, would seriously endanger “the freedom to conduct business enjoyed by operators such as ISPs”, also possibly infringing “the fundamental rights of that ISP’s customers, namely their right to protection of their personal data and their freedom to receive or impart information.” See also Global FoE