03/02/2020
CURIA - Documents
applicable fundamental rights, are to be interpreted as precluding a national court from issuing an injunction
against a hosting service provider which requires it to install a system for filtering:
information which is stored on its servers by its service users;
which applies indiscriminately to all of those users;
as a preventative measure;
exclusively at its expense; and
for an unlimited period,
which is capable of identifying electronic files containing musical, cinematographic or audio-visual work in respect of
which the applicant for the injunction claims to hold intellectual property rights, with a view to preventing those
works from being made available to the public in breach of copyright (‘the contested filtering system’).
In that regard, first, it is not in dispute that the owner of an online social networking platform - such as Netlog stores information provided by the users of that platform, relating to their profile, on its servers, and that it is thus
a hosting service provider within the meaning of Article 14 of Directive 2000/31.
Next, it should be borne in mind that, according to Article 8(3) of Directive 2001/29 and the third sentence of
Article 11 of Directive 2004/48, holders of intellectual property rights may apply for an injunction against operators
of online social networking platforms, such as Netlog, who act as intermediaries within the meaning of those
provisions, given that their services may be exploited by users of those platforms to infringe intellectual property
rights.
In addition, it follows from the Court’s case-law that the jurisdiction conferred on national courts, in accordance
with those provisions, must allow them to order those intermediaries to take measures aimed not only at bringing
to an end infringements already committed against intellectual-property rights using their information-society
services, but also at preventing further infringements (see Case C‑70/10 Scarlet Extended [2011] ECR I-11959,
paragraph 31).
Lastly, it follows from that same case-law that the rules for the operation of the injunctions for which the Member
States must provide under Article 8(3) of Directive 2001/29 and the third sentence of Article 11 of
Directive 2004/48, such as those relating to the conditions to be met and to the procedure to be followed, are a
matter for national law (see Scarlet Extended, paragraph 32).
Nevertheless, the rules established by the Member States, and likewise their application by the national courts,
must observe the limitations arising from Directives 2001/29 and 2004/48 and from the sources of law to which
those directives refer (see Scarlet Extended, paragraph 33).
Thus, in accordance with recital 16 in the preamble to Directive 2001/29 and Article 2(3)(a) of Directive 2004/48,
those rules may not affect the provisions of Directive 2000/31 and, more specifically, Articles 12 to 15 thereof (see
Scarlet Extended, paragraph 34).
Consequently, those rules must, in particular, respect Article 15(1) of Directive 2000/31, which prohibits national
authorities from adopting measures which would require a hosting service provider to carry out general monitoring
of the information that it stores (see, by analogy, Scarlet Extended, paragraph 35).
In that regard, the Court has already ruled that that prohibition applies in particular to national measures which
would require an intermediary provider, such as a hosting service provider, to actively monitor all the data of each
of its customers in order to prevent any future infringement of intellectual-property rights. Furthermore, such a
general monitoring obligation would be incompatible with Article 3 of Directive 2004/48, which states that the
measures referred to by the directive must be fair and proportionate and must not be excessively costly (see
Scarlet Extended, paragraph 36).
In those circumstances, it is necessary to examine whether the injunction at issue in the main proceedings, which
would require the hosting service provider to introduce the contested filtering system, would oblige it, as part of
that system, to actively monitor all the data of each of its service users in order to prevent any future infringement
of intellectual‑property rights.
In that regard, it is common ground that implementation of that filtering system would require:
first, that the hosting service provider identify, within all of the files stored on its servers by all its service users,
the files which are likely to contain works in respect of which holders of intellectual-property rights claim to hold
rights;
next, that it determine which of those files are being stored and made available to the public unlawfully; and
lastly, that it prevent files that it considers to be unlawful from being made available.
Preventive monitoring of this kind would thus require active observation of files stored by users with the hosting
service provider and would involve almost all of the information thus stored and all of the service users of that
provider (see, by analogy, Scarlet Extended, paragraph 39).
In the light of the foregoing, it must be held that the injunction imposed on the hosting service provider requiring
it to install the contested filtering system would oblige it to actively monitor almost all the data relating to all of its
service users in order to prevent any future infringement of intellectual-property rights. It follows that that
injunction would require the hosting service provider to carry out general monitoring, something which is prohibited
by Article 15(1) of Directive 2000/31 (see, by analogy, Scarlet Extended, paragraph 40).
In order to assess whether that injunction is consistent with EU law, account must also be taken of the
requirements that stem from the protection of the applicable fundamental rights, such as those mentioned by the
referring court.
In that regard, it should be borne in mind that the injunction at issue in the main proceedings pursues the aim of
ensuring the protection of copyright, which is an intellectual-property right, which may be infringed by the nature
and content of certain information stored and made available to the public by means of the service offered by the
hosting service provider.
The protection of the right to intellectual property is indeed enshrined in Article 17(2) of the Charter of
Fundamental Rights of the European Union (‘the Charter’). There is, however, nothing whatsoever in the wording of
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