CEE: Court Of Justice Of EU: Freedom For The Peer

The Court of Justice of the European Union (CJEU) has deprived the audio recording and movie industries of one of their main instruments against the sharing of illegal internet content – the possibility to impose an injunction against an internet service provider (ISP) that requires it to install a system to filter electronic communications, especially those involving the use of peer-to-peer software. The CJEU balanced the protection of intellectual property rights against other fundamental rights of individuals, such as freedom to conduct business, freedom of information, and protection of personal data.

The issue

In a procedure for preliminary ruling under Article 267 TFEU, the main question referred to the CJEU was whether the relevant European legislation in the field of intellectual property rights in the information society, considering the protection provided by such legislation of the applicable fundamental rights, should be interpreted to preclude an injunction against an ISP to introduce a system for filtering electronic communications (especially involving peer-to-peer software) to prevent file sharing that infringes copyrights.

While the protection of the right to intellectual property is enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union (the Charter), it should not be interpreted as an absolute right protected at any cost. According to CJEU case law (Case C-275/06 Promusicae [2008] ECR I-271),by imposing measures to protect intellectual property rights, the national authorities must observe a fair balance between protecting copyrights and protecting fundamental rights of individuals affected by such measures.

Three fundamental rights threatened

The Court ruled that imposing an obligation on an ISP to install a system for filtering electronic communications to prevent file sharing that infringes copyrights threatens three fundamental rights granted by the Charter.

Freedom of the ISP to conduct business

The Court ruled that the injunction imposing an obligation on the ISP to install and maintain at its expense a complicated and costly computer system to monitor all electronic communications made through the network for an unlimited period of time so to protect the rights of the copyright holders limits the ISP's freedom to conduct business under Article 16 of the Charter. It also contradicts the conditions in Article 3(1) of the Enforcement Directive that measures to ensure the respect of...