Tobias Mc Fadden v Sony Music Entertainment Germany GmbH.
Date: 2016-09-15
40


That conclusion is borne out by recital 18 of Directive 2000/31 which states that, although information society services are not solely restricted to services giving rise to online contracting but extend to other services, those services must represent an economic activity.
41


Nonetheless, it does not follow that a service of an economic nature performed free of charge may under no circumstances constitute an ‘information society service’ within the meaning of Article 12(1) of Directive 2000/31. The remuneration of a service supplied by a service provider within the course of its economic activity does not require the service to be paid for by those for whom it is performed (see, to that effect, judgment of 11 September 2014, Papasavvas, C‑291/13, EU:C:2014:2209, paragraphs 28 and 29).
42


That is the case, inter alia, where the performance of a service free of charge is provided by a service provider for the purposes of advertising the goods sold and services provided by that service provider, since the cost of that activity is incorporated into the price of those goods or services (judgment of 26 April 1988, Bond van Adverteerders and Others, 352/85, EU:C:1988:196, paragraph 16, and of 11 April 2000, Deliège, C‑51/96 and C‑191/97, EU:C:2000:199, paragraph 56).
51


The Court recognises that it may appear from the use in Article 2(b) of Directive 2000/31 of the verb anbieten in its German language version that that article refers to the idea of an “offer”, and thus to a certain form of advertising.
62


Nevertheless, the service provided by an internet website host, which consists in the storage of information, is of a more permanent nature. Accordingly, such a host may obtain knowledge of the illegal character of certain information that it stores at a time subsequent to that when the storage was processed and when it is still capable of taking action to remove or disable access to it.
77


Thus, where an infringement is perpetrated by a third party by means of an internet connection which was made available to him by a communication network access provider, Article 12(1) of the directive does not preclude the person harmed by that infringement from seeking before a national authority or court to have the service provider prevented from allowing that infringement to continue.
82


In addition, in so far as such an injunction, first, places a burden on the access provider capable of affecting his economic activity and, second, is capable of restricting the freedom available to recipients of such a service from benefiting from access to the internet, the Court finds that the injunction infringes the former’s right of freedom to conduct a business, protected under Article 16 of the Charter, and the right of others to freedom of information, the protection of which is provided for by Article 11 of the Charter.
83


Where several fundamental rights protected under EU law are at stake, it is for the national authorities or courts concerned to ensure that a fair balance is struck between those rights (see, to that effect, judgment of 29 January 2008, Promusicae, C‑275/06, EU:C:2008:54, paragraphs 68 and 70).
88


As regards, second, the measure consisting in terminating the internet connection completely, it must be found that so doing would cause a serious infringement of the freedom to conduct a business of a person who pursues an economic activity, albeit of a secondary nature, consisting in providing internet access by categorically preventing that provider from pursuing the activity in practice in order to remedy a limited infringement of copyright without considering the adoption of measures less restrictive of that freedom.
92


In the second place, a measure consisting in securing an internet connection does not appear to be such as to undermine the essence of the right to freedom of information of the recipients of an internet network access service, in so far as it is limited to requiring such recipients to request a password, it being clear furthermore that that connection constitutes only one of several means of accessing the internet.
94


However, a measure adopted by a communication network access provider consisting in securing the connection to that network does not appear to be capable of affecting the possibility made available to internet users using the services of that provider to access information lawfully, in so far as the measure does not block any internet site.
96


In that regard, the Court finds that a measure consisting in password-protecting an internet connection may dissuade the users of that connection from infringing copyright or related rights, provided that those users are required to reveal their identity in order to obtain the required password and may not therefore act anonymously, a matter which it is for the referring court to ascertain.
97


In the fifth place, it should be recalled that, according to the referring court, there is no measure, other than the three measures that it referred to, that a communication network access provider, such as the applicant in the main proceedings, could, in practice, take in order to comply with an injunction such as that at issue in the main proceedings.