ECJ decision on handing traffic information in civil cases

(Dieser Artikel ist auch in deutscher Sprache verfügbar)

The European Court of Justice (ECJ) has decided on 29 January 2008 in the
case of Productores de Música de España Promusicae vs. Telefónica de España
considering that the European law “does not require member states to lay
down an obligation to disclose personal data in the context of civil
proceedings”. However, the decision allows the national courts to do that
if the national interpretation requires so: “As to those directives, their
provisions are relatively general, since they have to be applied to a large
number of different situations which may arise in any of the Member States.”

The decision came in the case where the Spanish music Association Promusicae
asked the ISP Telefonica to hand over the names and addresses of the
subscribers that allegedly distributed copyrighted songs via the p2p
software Kazaa. Telefonica refused, considering that it could do that only
in a criminal investigation or in matters of public security and national
defence. The company based its position on the Spanish implementation of the
E-commerce directive. A Spanish Court of Madrid asked the ECJto decide on
the conformity of the Spanish act to the EU law on this matter.

The Advocate General Juliane Kokott’s opinion published on 18 July 2007
was positive for the ISPs, suggesting that the member states exclusion of
revealing personal data from Internet traffic in the copyright infringement
civil law cases was compatible with the EU law.

However, the ECJ final decision was limited to claiming that the
European Directives invoked in this case “do not require the Member States
to lay down (…) an obligation to communicate personal data in order to
ensure effective protection of copyright in the context of civil
proceedings.” This confirms that the EU law does not directly require the
national courts to disclose the personal data in civil cases of copyright
infringement.

At the same time, the decision considers that it is acceptable for national
laws to allow forcing of disclosure in civil proceedings, taking
into consideration their balance of fundamental rights : “(…)when
implementing the measures transposing those directives, the authorities and
courts of the Member States must not only interpret their national law in a
manner consistent with those directives but also make sure that they do not
rely on an interpretation of them which would be in conflict with those
fundamental rights or with the other general principles of Community law,
such as the principle of proportionality. ”

Intellectual property lawyer Iain Connor, a partner with Pinsent Masons,
considered the ruling could be bad news for ISPs in the UK : “You could
potentially get people who want to host material effectively forum shopping
and going to ISPs in places where disclosure would not be ordered.”

Meryem Marzouki, president of the EDRi-member IRIS France, considers the
decision as more in favour of the copyright holders demands and insists that
the ruling is a step backward if reffered to the Advocate General’s opinion
in this case that the EU legislation on personal data protection should
prevail on the Community law on e-commerce, copyright protection and IP
enforcement.

C-275/06 – Promusicae vs Telefonica – ECJ decision (29.01.2008)
http://www.bailii.org/eu/cases/EUECJ/2008/C27506.html

Countries can choose whether or not to force disclosure of file-sharers
(29.01.2008)
http://www.out-law.com/page-8836

Court delivers a blow to record companies on internet piracy (30.01.2008)
http://business.timesonline.co.uk/tol/business/law/article3273960.ece

EU supremes: ISPs don’t always have to finger filesharers (29.01.2008)
http://www.theregister.co.uk/2008/01/29/eu_supreme_civil_isp_filesharing_case_law/

EDRi-gram: ECJ’s Advocate General says no handing traffic information in
civil cases (1.08.2007)
http://www.edri.org/edrigram/number5.15/traffic-data-civil-cases