Scarlet Extended SA – CJEU Judgment (Belgium, 2011)

The Belgian Association of Authors, Composers and Publishers ('SABAM') is a collective management organisation with the goal of collecting, distributing, administrating and managing all authors' rights in Belgium and abroad. Scarlet is an Internet Service Provider ('ISP') which provides its customers with access to the internet without offering other services such as downloading or file sharing. In 2004, SABAM concluded that copyrighted works in its catalogue were being downloaded by Scarlet internet users through 'peer-to-peer networks' without authorisation or paying the royalties owed to artists. It brought proceedings against the ISP to court, claiming the company was best placed to bring measures to stop these copyright infringements. First, it sought a declaration that copyright infringements had occurred through the use of Scarlet services. Second, it sought an order requiring Scarlet to prevent these by blocking such delivery of files containing copyrighted works using peer-to-peer software. Thirdly, it requested that the ISP provide the organisation with details of the measures that it would apply to comply with the judgment. In a first judgment in 2004, the First Instance Court of Brussels held that copyright had been infringed. It nonetheless could not determine if the measures proposed by SABAM were technically feasible and appointed an expert to assess this. The appointed expert concluded that whilst there were some significant obstacles, this was feasible. In a second judgment in 2007, the court ordered the ISP to bring an end to the copyright infringements by installing a filtering and blocking system. Scarlet appealed, claiming such a system would effectively require the general surveillance of all communications passing through its system, a breach of Article 15 Directive 2000/31. Further, the company "considered that the installation of a filtering system would be in breach of the provisions of European Union law on the protection of personal dat