Judgment of the Court (Third Chamber) of 24 November 2011 (reference for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium)) — Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM)

(Case C-70/10) (1)

(Information society - Copyright - Internet - ‘Peer-to-peer’ software - Internet service providers - Installation of a system for filtering electronic communications in order to prevent file sharing which infringes copyright - No general obligation to monitor information transmitted)

(2012/C 25/10)

Language of the case: French

Referring court

Cour d’appel de Bruxelles

Parties to the main proceedings

Appellant: Scarlet Extended SA

Respondent: Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM)

Intervening parties: Belgian Entertainment Association Video ASBL (BEA Video), Belgian Entertainment Association Music ASBL (BEA Music), Internet Service Provider Association ASBL (ISPA)

Re:

Reference for a preliminary ruling — Cour d’appel de Bruxelles — Interpretation of Directives 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10), 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45), 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31), 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1), 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (‘Directive on privacy and electronic communications’) (OJ 2002 L 201, p. 37) — Processing of data passing through the internet — Installation by operators of a system for filtering electronic communications, in abstracto and as a preventive measure in order to identify users allegedly using files infringing copyright or related rights — Application, of its own motion, by the national court of the principle of proportionality — European Convention for the Protection of Human Rights and Fundamental Freedoms — Right to respect for privacy — Right to freedom of expression

Operative part of the judgment

Directives:

— 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’);

— 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society;

— 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights;

— 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data; and

— 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction made against an internet service provider which requires it to install a system for filtering

— all electronic communications passing via its services, in particular those involving the use of peer-to-peer software;

— which applies indiscriminately to all its customers;

— as a preventive measure;

— exclusively at its expense; and

— for an unlimited period, 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.

(1) OJ C 113, 1.5.2010.