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Privacy v Copyright: The Social Networking Conundrum

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The European Court of Justice (“CJEU”) has,  in the case of SABAM v Netlog1, recently resisted imposing a “general filtering system” obligation on social networks. Such a system would operate to prevent all users from sharing copyrighted music, but was held by the CJEU to be disproportionate.

The case was contested between SABAM (“the claimant”), a rights management company responsible for authorising the use by third parties of their copyright-protected works, and Netlog (“the respondent”), an online social network. The claimant had sued because users of the respondent’s social network were sharing copyrighted music through their permitted personal spaces. Other users could access this material without paying a fee to the claimant, and without the claimant receiving any payment from the respondent. The claimant sought to impose an injunction requiring the respondent to cease unlawfully making the copyrighted materials available, and after a trial at first instance in theBrussels Courtthe matter was referred up to the CJEU. 

The CJEU held that an obligation of a general filtering system couldn’t be imposed on the owner of an online social network. The Court considered the need to strike a fair balance between the protection of copyright and the protection of fundamental rights, and it concluded that the imposition of such an obligation would be disproportionate to the extent that such a filter might infringe user privacy rights or restrict lawful communication. In particular the granting of such an injunction would potentially restrict the right to protection of user’s personal data, and the freedom to receive or send lawful communication. Further, it was also observed that the implementation of a filtering system would amount to a requirement on the service provider to carry out general monitoring of the information stored on its servers. This is something prohibited by the e-Commerce Directive, as it would impede on the freedom of the respondent to conduct their business by the imposition of such a significantly large burden. 

In coming to this conclusion the CJEU have extended the position that internet service providers do not have a duty to monitor content to social network providers, as a result of their status as “hosting providers”. However, this does not mean that no injunction could ever be granted against such service providers. The CJEU has merely made it clear that if such orders are to be made then they will be required to be more fairly balanced with the fundamental rights of the service providers and the users.

For additional information please contact Justin Emerson of Gepp & Sons on 01245 228113 or emersonj@gepp.co.uk

The above is not legal advice; it is intended to provide information of general interest about current legal issues.

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