03/02/2020
CURIA - Documents
shall be fair and equitable and shall not be unnecessarily complicated or costly, or entail unreasonable time-limits
or unwarranted delays.
(2)
Those measures, procedures and remedies shall also be effective, proportionate and dissuasive and shall be
applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards
against their abuse.’
The third sentence of Article 11 of Directive 2004/48 states:
‘Member States shall also ensure that rightholders are in a position to apply for an injunction against intermediaries
whose services are used by a third party to infringe an intellectual property right, without prejudice to Article 8(3)
of Directive [2001/29].’
National law
Article 87(1), first and second subparagraphs, of the Law of 30 June 1994 on copyright and related rights (Belgisch
Staatsblad, 27 July 1994, p. 19297), which transposes Article 8(3) of Directive 2001/29 and Article 11 of Directive
2004/48 into national law, states:
‘The President of the Tribunal de première instance (Court of First Instance) … shall determine the existence of any
infringement of a copyright or related right and shall order that it be brought to an end.
He may also issue an injunction against intermediaries whose services are used by a third party to infringe a
copyright or related right.’
Articles 20 and 21 of the Law of 11 March 2003 on certain legal aspects of information society services (Belgisch
Staatsblad, 17 March 2003, p. 12962) transpose Articles 14 and 15 of Directive 2000/31 into national law.
The dispute in the main proceedings and the question referred for a preliminary ruling
SABAM is a management company which represents authors, composers and publishers of musical works. On that
basis, it is responsible for, inter alia, authorising the use by third parties of copyright-protected works of those
authors, composers and publishers.
Netlog runs an online social networking platform where every person who registers acquires a personal space
known as a ‘profile’ which the user can complete himself and which becomes available globally.
The most important function of that platform, which is used by tens of millions of individuals on a daily basis, is to
build virtual communities through which those individuals can communicate with each other and thereby develop
friendships. On their profile, users can, inter alia, keep a diary, indicate their hobbies and interests, show who their
friends are, display personal photos or publish video clips.
However, SABAM claimed that Netlog’s social network also offers all users the opportunity to make use, by means
of their profile, of the musical and audio-visual works in SABAM’s repertoire, making those works available to the
public in such a way that other users of that network can have access to them without SABAM’s consent and
without Netlog paying it any fee.
During February 2009, SABAM approached Netlog with a view to concluding an agreement regarding the payment
of a fee by Netlog for the use of the SABAM repertoire.
By letter of 2 June 2009, SABAM gave notice to Netlog that it should give an undertaking to cease and desist from
making available to the public musical and audio-visual works from SABAM’s repertoire without the necessary
authorisation.
On 23 June 2009, SABAM had Netlog summoned before the President of the rechtbank van eerste aanleg te
Brussel (Court of First Instance, Brussels) in injunction proceedings under Article 87(1) of the Law of 30 June 1994
on copyright and related rights, requesting inter alia that Netlog be ordered immediately to cease unlawfully
making available musical or audio-visual works from SABAM’s repertoire and to pay a penalty of EUR 1000 for each
day of delay in complying with that order.
In that regard, Netlog submitted that granting SABAM’s injunction would be tantamount to imposing on Netlog a
general obligation to monitor, which is prohibited by Article 21(1) of the Law of 11 March 2003 on certain legal
aspects of information society services, which transposes Article 15(1) of Directive 2000/31 into national law.
In addition, Netlog claimed, without being contradicted by SABAM, that the granting of such an injunction could
result in the imposition of an order that it introduce, for all its customers, in abstracto and as a preventative
measure, at its own cost and for an unlimited period, a system for filtering most of the information which is stored
on its servers in order to identify on its servers electronic files containing musical, cinematographic or audio-visual
work in respect of which SABAM claims to hold rights, and subsequently that it block the exchange of such files.
It is possible that introducing such a filtering system would mean that personal data would have to be processed
which would have to satisfy the provisions of EU law relating to the protection of personal data and the
confidentiality of communications.
In those circumstances, the rechtbank van eerste aanleg te Brussel decided to stay the proceedings and to refer
the following question to the Court of Justice for a preliminary ruling:
‘Do Directives 2001/29 and 2004/48, in conjunction with Directives 95/46, 2000/31 and 2002/58, construed in
particular in the light of Articles 8 and 10 of the European Convention on the Protection of Human Rights and
Fundamental Freedoms [signed in Rome on 4 November 1950], permit Member States to authorise a national
court, before which substantive proceedings have been brought and on the basis merely of a statutory provision
stating that “[the national courts] may also issue an injunction against intermediaries whose services are used by a
third party to infringe a copyright or related right”, to order a hosting service provider to introduce, for all its
customers, in abstracto and as a preventive measure, at its own cost and for an unlimited period, a system for
filtering most of the information which is stored on its servers in order to identify on its servers electronic files
containing musical, cinematographic or audio-visual work in respect of which SABAM claims to hold rights, and
subsequently to block the exchange of such files?’
Consideration of the question referred
By its question, 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
curia.europa.eu/juris/document/document.jsf?text=&docid=119512&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=150383
3/6