A Court of Justice judgment clears that the owner of an online social network cannot be obliged to install a general filtering system in order to prevent the unlawful use of musical and audio-visual work. Such an obligation would not be respecting the prohibition to impose on that provider a general obligation to monitor nor the requirement that a fair balance be struck between the protection of copyright and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information.

The judgment of the Court of Justice of the EU in the case of SABAM, a Belgian management company which represents authors, composers and publishers of musical works, against Netlog NV, an online social networking platform where every person who registers acquires a personal space known as a ‘profile’ where, according to SABAM, all users can add musical and audio-visual works in SABAM’s repertoire, making those works available to the public without SABAM’s consent and without Netlog paying it any fee, clears that a national court could not require to the online social network to install a system for filtering information stored on its servers, because it would result in a serious infringement of Netlog’s freedom to conduct its business since it would require Netlog to install a complicated, costly, permanent computer system at its own expense.

In addition, the Court of Justice considers that the effects of that injunction would not be limited to Netlog, as the filtering system may also infringe the fundamental rights of its service users - namely their right to protection of their personal data and their freedom to receive or impart information - which are rights safeguarded by the Charter of Fundamental Rights of the European Union. Recently the Commission published a report on the implementation of the Charter.

Therefore if a national court adopts an injunction requiring the hosting service provider to install such a filtering system, the national court would not be respecting 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.