SCARLET EXTENDED SA V. SOCIETE BELGE DES AUTEURS, COMPOSITEURS ET EDITEURS SCRL (SABAM), 24.Nov.2011 (“SCARLET”)

Necessity/proportionality: Requiring ISPs to install a system for filtering electronic communications would be incompatible with EU Directives, namely with Article 15(1) of Directive 2000/31, which prohibits imposition of an obligation on an Internet service provider to carry out general monitoring of the information that it transmits on its network, and would be against the fundamental rights of Internet users to the protection of their personal data and freedom of expression guaranteed under the EU Charter of Fundamental Rights. (¶ 53)

Consequently, it must be held that, in adopting the injunction requiring the ISP to install the contested filtering system, the national court concerned 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.