European Union: CJEU Decision Finds That Requiring ISPs To Filter Content Is Illegal

In the long awaited judgment in the case of Scarlet Extended SA v SABAM, the Court of Justice of the European Union delivered a landmark decision preventing an onerous obligation being imposed by injunction on an Internet Service Provider (ISP) requiring it to prevent copyright infringements online. It ruled that the proposed injunction, which would require an ISP to install an expensive system for filtering, applied indiscriminately to all users as a preventative measure, and capable of identifying files which infringe copyright, was illegal and contrary to applicable fundamental rights, notably proportionality.

To view the article in full, please see below:

Full Article

The case of Sabam v Tiscali in the Belgian courts in 2007 addressed whether the court should grant injunctive relief to SABAM (the Belgian Society of Authors, Composers, and Publishers) against the Internet Service Provider ("ISP"), Tiscali, imposing an obligation on the ISP to stop infringements of SABAM's intellectual property by making it impossible for Tiscali's users to use "peer-to-peer" ("P2P") software to transmit infringing files containing musical compositions. After hearing expert evidence in support of the application of such a filter, the Belgian Court granted an injunction ordering Tiscali to install filtering software to prevent the ISP's customers from sending electronic files containing musical works that were part of the SABAM repertoire.

Tiscali subsequently appealed the decision and, prior to delivering a judgment, in January 2010 the Belgian Court of Appeal referred two questions to the Court of Justice at the European Union ("CJEU") to ascertain whether a national court was entitled to impose an obligation on an ISP to filter its internet traffic, and, if so, to what extent the national court had to consider the proportionality of the measure.

The questions referred were:

'(1) Do Directives 2001/29 and 2004/48, in conjunction with Directives 95/46, 2000/31 and 2002/58, construed in particular in the light of Articles 8 and 10 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, permit Member States to authorise a national court, before which substantive proceedings have been brought and on the basis merely of a statutory provision stating that: 'They [the national courts] may also issue an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right', to order an [ISP] to install, for all its customers, in abstracto and as a preventive measure, exclusively at the cost of that ISP and for an unlimited period, a system for filtering all electronic communications, both incoming and outgoing, passing via its services, in particular those involving the use of peer-to-peer software, in order to identify on its network the movement of electronic files containing a musical, cinematographic or audiovisual work in respect of which the applicant claims to hold rights, and subsequently to block the transfer of such files, either at the point at which they are requested or at which they are sent?

(2) If the answer to the [first] question ... is in the affirmative, do those directives require a national court, called upon to give a ruling on an application for an injunction against an intermediary whose services are used by a third party to infringe a copyright, to apply the principle of proportionality when deciding on the effectiveness and dissuasive effect of the measure sought?'

Relevant Directives

Directive 2000/31 EC (The E-commerce Directive) seeks to establish the free movement of information society services in the internal market and sets out certain "safe harbour" provisions for ISPs. However it also recognises that Member States can grant injunctions to prevent certain infringements, including requiring the removal of illegal information or the disabling of access to it.

In particular, Article 12 of the E-commerce Directive provides that Member States shall ensure service providers are not liable for information transmitted on their networks provided that the provider does not initiate the transmission, does not select the receiver of the transmission and does not select or modify the information contained on the transmission.

Article 15 of the same Directive states that Member States shall not impose a general obligation on providers to monitor the information which they transmit or store nor a general obligation actively to seek facts or circumstances indicating unlawful activity.

Article 8 of Directive 2001/29 (The Copyright Directive) states that Member States must provide appropriate sanctions and remedies in respect of copyright infringements. The sanctions must be effective, proportionate and dissuasive. It also states that Member States shall ensure that rights holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.

Directive 2004/48 (The IP Enforcement Directive) is directed to the provision of adequate enforcement mechanisms for the prevention of intellectual property rights. In particular, Article 3 provides that Member States shall provide for measures, procedures and remedies necessary to ensure the enforcement of intellectual property rights which must be fair and equitable, not unnecessarily complicated or costly, and not entail unreasonable time-limits or unwarranted delays.

Article 11 of The IP Enforcement Directive states that Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right.

Filtering Out

The CJEU stated that the particular injunction being considered would have required that the ISP (i) identify, within all of the electronic communications of all its customers, the files relating to peer-to-peer traffic; (ii) identify, within that traffic, the files containing works in respect of which holders of intellectual-property rights claim to hold rights; (iii) determine which of those files are being shared unlawfully; and (iv) block file sharing that it considers to be unlawful.

The Court concluded that the requirement to monitor actively all the data relating to each of its customers would require the ISP to carry out general monitoring, which is prohibited by Article 15 of the E-Commerce Directive.

Striking a Balance

Consideration of the injunction's lawfulness also required consideration of the applicable fundamental rights. The protection of intellectual property rights is enshrined in the Charter of Fundamental Rights of the European Union ('the Charter') but there was nothing to suggest that that right is wholly inviolable and must for that reason be absolutely protected.

The CJEU held that national authorities and courts must strike a fair balance between the right to the protection of intellectual property enjoyed by copyright holders, and to the freedom to conduct a business, enjoyed by operators such as ISPs pursuant to Article 16 of the Charter.

The injunction would result in a serious infringement of the freedom of the ISP concerned to conduct its business since it would require that ISP to install a complicated, costly, permanent computer system at its own expense. It would also be contrary to Article 3 of the IP Enforcement Directive which requires measures designed to protect intellectual property rights not to be unnecessarily complicated or costly.

The judgment made reference to the principle of proportionality, which, amongst other things, requires that any legislative objective be sufficiently important to justify limiting a fundamental right and that the means used to impair the right or freedom are no more than is necessary to accomplish the specific objective. The CJEU noted that the proposed monitoring injunction had no limitation in time, was directed at all future infringements and was intended to protect not only existing works, but also future works that have not yet been created at the time the system would be introduced.

The judgment also considered the fundamental rights of the ISP's customers, namely their right to protection of their personal data and their freedom to receive or impart information. The injunction would involve a systematic analysis of all content and the collection and identification of users' IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified. The injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications.

Overall the CJEU ruled that the proposed injunction would not respect the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other.

Implications for the Future

The case is a useful exposition of the relevant Directives and fundamental freedoms that must be balanced by the Courts in cases where rights holders seek injunctions against intermediaries. The CJEU has made it clear that such a costly and unlimited filtering requirement imposed on an ISP would be contrary to the E-Commerce Directive and the Copyright Directive and would not respect the rights of ISPs or consumers.

The decision appears to close the door on generalised attempts to require ISPs to filter all communications on their networks to identify copyright infringing material and prevent its transmission. It also implies that any injunctions against intermediaries or other analogous obligations imposed on them, (such as 'technical measures' proposed to be imposed on ISPs under the Digital Economy Act), would need to be shown to be materially better targeted, less onerous and less costly than the filtering obligation proposed here.

The susceptibility of intermediaries to injunctions brought by rights holders to prevent infringement of intellectual property rights is a topical area of the law in the UK and in the EU at large. A recent example is the case of 20th Century Fox v BT where the High Court granted an injunction requiring BT to block access to a website used for copyright infringement, on the basis that there appeared to be no legitimate use on the site and that the cost of the measures would be modest and proportionate. While the Sabam v Scarlet case does not appear to contradict the findings of fact in that particular case, it does emphasise that the CJEU is willing to uphold the rights of ISPs to conduct their business and the rights of consumers to freedom of information in cases of copyright enforcement in the digital age.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 28/11/2011.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.