Judgment — ECLI:EU:C:2012:85
Date: 2012-02-16
Language of the case: Dutch
Court formation: Third Chamber
Subject matter: Right of establishment;Consumer protection;Approximation of laws;Freedom to provide services;Data protection
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment Approximation of laws — Information society — Copyright and related rights — Protection of personal data in the electronic communications sector (Charter of Fundamental Rights of the European Union, Arts 8 and 11; European Parliament and Council Directives 2000/31, Art. 15(1), 2001/29 and 2004/48, Art. 3(1)) Directives 2000/31 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society, and 2004/48 on the enforcement of intellectual property rights, read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must 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 stored on its servers by its service users; — which applies indiscriminately to all those users; — as a preventative measure; — exclusively at its expense; and — for an unlimited period, 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. Such an injunction would oblige the hosting service provider actively to monitor almost all the data relating to all its service users in order to prevent any future infringement of intellectual-property rights, and would thus require that hosting service provider to carry out general monitoring, prohibited by Article 15(1) of Directive 2000/31. It would, moreover, would result in a serious infringement of the hosting service provider’s freedom to conduct its business since it would require that hosting service provider to install a complicated, costly, permanent computer system at its own expense, which would also be contrary to the conditions laid down in Article 3(1) of Directive 2004/48, which requires that measures to ensure the respect of intellectual-property rights should not be unnecessarily complicated or costly. Accordingly, such an injunction would not respect the requirement of a fair balance’s being struck between, on the one hand, the protection of the intellectual-property right enjoyed by copyright holders, and, on the other hand, that of the freedom to conduct business enjoyed by operators such as hosting service providers. Moreover, the effects of that injunction would not be limited to the hosting service provider, as that filtering system may also infringe the fundamental rights of the service users, namely their right to protection of their personal data and their freedom to receive or impart information, those rights being safeguarded by Articles 8 and 11 of the Charter of Fundamental Rights of the European Union. On the one hand, the injunction would involve the identification, systematic analysis and processing of information connected with the profiles created on the social network by its users. The information connected with those profiles is protected personal data for, in principle, it allows those users to be identified. On the other, it could potentially jeopardise freedom of information, since it is likely that that system would not adequately distinguish unlawful content from lawful content, with the result that its introduction could lead to the blocking of lawful communications. (see paras 38, 46-50, 52, operative part)