## Facts

- A Belgian collecting society for authors and composers alleged that subscribers of a Belgian internet service provider (ISP) were using peer-to-peer (P2P) software to share protected musical works without authorization.
- The collecting society sought an injunction requiring the ISP to block or make impossible the sending and receiving of files containing protected works, particularly via P2P networks.
- A Belgian trial court found infringement by users and ordered the ISP to make it impossible for customers to send or receive, by P2P software, files containing works in the collecting society’s repertoire, subject to periodic fines.
- The ISP appealed, arguing the order required a technically complex and costly filtering system involving general and permanent monitoring of network traffic and conflicting with EU rules and fundamental rights.
- The appellate court referred to the Court of Justice of the European Union (CJEU) whether EU law permits an injunction requiring an ISP to install a system filtering all electronic communications on its network, applied indiscriminately to all customers, imposed preventively for an unlimited period, and at the ISP’s exclusive expense, to identify and block infringing file transfers.

## Issues

1. Whether EU law precludes an injunction ordering an ISP to implement an indiscriminate, preventive, indefinite filtering system monitoring all electronic communications (particularly P2P) to prevent copyright infringement.
2. Whether such an injunction would impose a prohibited general monitoring obligation on an intermediary under EU rules governing information-society services.
3. Whether requiring such filtering fails to strike a fair balance between intellectual property protection and fundamental rights, including data protection, freedom of expression/information, and the freedom to conduct a business.

## Decision

- The CJEU held that EU law precludes an injunction requiring an ISP to install a system for filtering all electronic communications passing via its services to identify and block transfers of files allegedly infringing copyright.
- The Court reasoned that the contemplated filtering would require active monitoring of all customer data and therefore amount to a prohibited general monitoring obligation.
- The Court further held that the measure would disproportionately interfere with the ISP’s freedom to conduct a business by imposing a costly, complex, permanent system at the ISP’s expense.
- The Court found the measure also interfered with users’ rights by requiring broad analysis of communications (implicating personal data) and risking the blocking of lawful communications, affecting freedom of expression and information.
- Because intellectual property protection is not absolute, the injunction’s preventive, indiscriminate, and unlimited character failed to maintain a fair balance among competing rights.

## Legal Principles

- EU law prohibits imposing on intermediaries a general obligation to monitor information transmitted or stored; injunctions that require indiscriminate monitoring of all network traffic violate this rule.
- Injunctions for intellectual property enforcement must be proportionate and must respect fundamental rights, including:
  - freedom to conduct a business (cost and operational burdens on intermediaries),
  - protection of personal data (large-scale analysis of communications), and
  - freedom of expression and information (risk of over-blocking lawful content).
- Broad, preventive, indefinite filtering obligations that apply to all users and place full costs on the intermediary are disproportionate and incompatible with the required balancing of rights.

## Conclusion

The CJEU ruled that an ISP cannot be compelled by injunction to deploy a general, preventive, and indefinite filtering system monitoring all communications to block copyright infringements, because such an order imposes forbidden general monitoring and disproportionately burdens business freedom while jeopardizing users’ data-protection and expression rights.


Scarlet Extended SA v. Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM), Case C-70/10 (C.J.E.U. 2011)