This is a landmark case on IP, freedom of information and freedom to conduct a business on the internet. The court attempted to strike a balance between the various protected rights, undertaking an extensive analysis of the relevant CJEU case law.
The case concerns a request for interim measures lodged with the First Instance Civil Court of Athens. The applicant, a non-profit civil society organisation representing record companies, alleged a violation of its members’ intellectual property rights due to the illegal uploading of their IP on peer to peer and torrent sharing networks. The applicant requested that the Court orders the service providers to apply filters precluding access to and downloading of the protected content. Alternatively, they requested that the Court orders measures precluding access to the relevant domains altogether or any other measure it deems suitable to protect their members’ IP rights, as well financial measures in the case of non-compliance.
The court decided that liability in this case should be determined in the same manner as for hosting service providers. It found that the providers did not have actual knowledge of the illegal activities or stored information, and did not have an obligation to monitor the information available through their domain, nor to actively seek facts or circumstances indicating illegal activity. The measures requested cannot de facto be limited to the relevant illegal content, but will necessarily extend to all related activities, introducing a general obligation for providers to monitor all activities in their domain. This process would necessarily entail the use of automated procedures which cannot differentiate between the legal and illegal uses of the content in question. The Court also found that the requested measures would violate the providers’ right to conduct a business on the internet, imposing on them an undue financial and organisational burden. Finally, the requested measures would impinge on freedom of information and the principle of net neutrality, which mandates that all information should circulate freely irrespective of its nature and purpose.