The French ruling was welcomed by service providers and search engines. Especially since a district court in Hamburg, Germany, ruled earlier this year that Google should ‘proactively flag up infringing material by using existing technology’ and inform rights holders when material - that had earlier been classified as unlawful - popped up again. The German Judge said YouTube should actively use ‘Content ID’, a system that is able to identify copyrighted music and film content the video giant has been using in order to prevent the spread of illegal copies. Back then, in April, the German court said YouTube should not solely rely on rights holders using the system and proactively use it as well.
The latest court ruling in France does follow last year’s decision by the European Court of Justice, that ruled that national courts have no powers to oblige internet service providers to use filter systems, such as ‘Content ID’. Such an obligation would breach ISPs’ ‘rights to freely conduct business and individuals’ rights to privacy, free speech and the protection of their personal data’, the ECJ decided. In its ruling, the ECJ merely followed the E-Commerce Directive, which states that service providers cannot be made liable for copyright infringing material that they have not created and a duty to monitor online content should not exist.
The latest ruling, in France, should be seen as another step in the further classification of anti-piracy rules and policies in the European Union. Although the E-Commerce Directive states clearly that a national court cannot impose a general obligation to monitor online content on a service provider, an obligation to examine an individual case is possible and permissible under the E-Commerce Directive, allowing national courts to order service providers to monitor in ‘a specific case’.
Many experts believe it is now up to the European Commission to further tighten the rules and clearly specify what a ‘specific case’ is. Also, it needs to set out if there is any liability for re-posted material, as the French court said there was not. Too many questions remain unanswered, which means right holders throughout Europe continue to suffer a different level of protection from service providers.
Michiel Willems © 2012 CP Publishing Ltd. Picture: Uworkers.org