Article 15 of the European Ecommerce Directive states that
Member States shall not impose a general obligation on providers … to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.
However recital 47 says that
“this does not concern monitoring obligations in a specific case”
Clearly the dividing line between “general obligation” and “specific case” is significant. The European Court of Justice has previously ruled that an order to monitor for and prevent copyright breaches was a “general obligation” and therefore prohibited. A French court has now extended that prohibition to cover a requirement to monitor for re-posting of specific material that had previously been removed for copyright breach; the fact that this would involve monitoring all users seems to have made it qualify as a “general obligation”. However a German court had previously ruled that the same host could be ordered a host to monitor for previously notified material and pro-actively notify the rightsholder.
It is not clear whether a future European court hearing will be able to find a difference between the cases and thereby mark a clear line between general and specific duties, or whether the decisions will be found to be incompatible. Alternatively the situation may turn out to be more complicated and involve a balance of the rights of the claimant, the host and the privacy rights of users whose activities would be monitored. This would make it harder to predict the outcome if the UK Parliament decides to take up the recent recommendation of the Joint Committee on Privacy and Injunctions that search engines be ordered not to index copies of material they have previously been told infringed privacy and were subject to a court injunction. If the law does turn out to require a balance, rather than a simple dividing line, it seems possible that a privacy injunction might carry more weight than a notification of copyright breach.
