On 19 April 2012, the Court of Justice of the European Union (“ECJ”) held that EU data protection rules do not preclude national legislation from providing that national courts can order IP address information to be provided to copyright owners whose rights have been infringed.
The ECJ judgment came in response to a preliminary question referred to it by the Swedish Supreme Court. The proceedings before the Swedish Supreme Court pitted publishers Bonnier Audio AB, Earbooks AB, Norstedts Förlagsgrupp AB, Piratförlaget AB and Storyside AB against Perfect Communication Sweden AB (“ePhone”). The publishers sought to impose an order on internet service provider ePhone to provide them with the name and address of a person connected to an IP address. The publishers claimed that the person using the IP address had uploaded 27 copyright protected audio books to an FTP (file transfer protocol) server. According to the publishers, this act constitutes an infringement of their copyright in the protected literary works.
The Swedish law implementing EU Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights (the “IP Enforcement Directive”) provides that a court may order to provide information on the origin and distribution network of the goods or services affected by the infringement. To obtain such order, the applicant must show clear evidence that someone has committed an infringement. Defendant ePhone claimed that European data protection rules, and in particular EU Directive 2006/24/EC of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (“Directive 2006/24/EC”), preclude such information from being disclosed.
In its preliminary ruling the ECJ held that Directive 2006/24/EC deals exclusively with the handling and retention of data for the purpose of the investigations, detection and prosecution of serious crimes and their communication to the competent national authorities. In contrast, the present case concerned the communication of data in civil proceedings, in order to obtain a declaration that there has been an infringement of intellectual property rights. Accordingly, the ECJ held that Directive 2006/24/EC was not relevant to the case at hand.
However, the ECJ added that the Swedish legislation permitting the disclosure of personal data must still comply with Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of the personal data and the free movement of such data (the “Data Protection Directive”) and European Directive 2002/58/EC of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (the “ePrivacy Directive”). With reference to the Promusicae case (Case C-275/06, see, this Newsletter, Volume 2008, No. 2, p. 3), the ECJ explained that this requires that the national legislation at hand must ensure a fair balance between the various applicable fundamental rights. In particular, the applicable rules must take account of the principle of proportionality under the Data Protection Directive.
In the case at hand, the ECJ considered that “the national legislation requires, inter alia, that there must be clear evidence of an infringement of an intellectual property right”, for an order for disclosure of the data in question to be made. In addition, the national legislation requires that the information requested can be regarded as facilitating the investigation into an infringement of copyright or impairment of such a right and that the reasons for the measure “outweigh the nuisance or other harm which the measure may entail for the person affected by it”.
Based on the above, the ECJ concluded that the national legislation in question is likely to ensure a fair balance between the protection of intellectual property rights enjoyed by copyright holders and the protection of personal data enjoyed by internet subscribers or users.
