Preservation of P2P file sharing data and transmission thereof in civil proceedings - Major ECJ ruling
ECJ
ruling on the disclosure of Peer-to-Peer users' personal data By its judgment of 29 January 2008, in Case C-275/06, the ECJ ruled that user data exchanging files through P2P systems did not may be disclosed in order to allow prosecution against them by authors (music, audiovisual, etc.) in case of illegal exchange of works.
(The architecture of a peer-to-peer network Source: Wikipedia).
In particular, the background to the case is as follows: The Spanish association Promusicae has filed an application against Telefónica, an Internet access provider, to compel it to disclose the identity and physical address of certain persons to whom it provides access services used by the KaZaA program for illegal reproduction of works. That application was upheld and Telefónica filed a notice of appeal before a Spanish court, which then referred a question to the Court of Justice for a preliminary ruling. The content of the question was as follows:
'It is permissible, according to artand in particular Article 15 (2) and Article 18 of Directive [2000/31], under Article 8 (1) and (2) of [Directive 2001/29], Article 8 of Directive [2004/29 / 48] and Article 17 (2) and Article 47 of the Charter ... Member States to restrict themselves to criminal investigations or to protection of public security or national defense and therefore to exclude, in the case of civil proceedings, the obligation of network operators and the provision of electronic communications services, on the basis of telecommunications networks and data storage service providers to maintain and have data of connection and movement generated by communications made during the provision of an information society service?
In interpreting Directive 2002/58, the Court of Justice accepted that the exceptions to the obligation to ensure the confidentiality of traffic data did not refer to issues concerning civil disputes, such as those at issue, concerning national security, national defense and public security, the prosecution of criminal offenses. Also, the protection of copyright as provided for in Directives 2000/31 (Articles 1 § 5b, 2001/29 (Article 9) and 2004/48 (Article 8 § 3e) does not imply the shrinking of personal data protection.
In conclusion, the Court has concluded that the abovementioned Directives do not oblige Member States, in cases such as the illegal reproduction of works on the Internet, to communicate personal data in order to ensure the effective protection of copyright in civil proceedings. It is true that Community law requires the Member States, when transposing those directives, to ensure that they are based on an interpretation which makes it possible to ensure a fair balance between the various fundamental rights protected by the Community legal order. And yet, against the national authorities and courts of the Member States are required not only to interpret their national law in a manner consistent with the same directives but also not to rely on an interpretation of what might to conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.
The consequence of this decision is that it is impossible to look up the PC user data based on the IP number, the current Internet connection number, and more specifically, it is clear that Internet service providers are not required to notify the data of their subscribers who are involved in the illicit trafficking of protected works (music, audiovisual, etc.) to authors or organizations for the collective exploitation of intellectual property rights. This does not, of course, exclude the adoption of specific legislation by Member States providing for the disclosure of personal data of Internet users in cases of copyright infringement. However, it would again be a risk for a state to introduce similar legislation,
Ioannis Igleszakis
ruling on the disclosure of Peer-to-Peer users' personal data By its judgment of 29 January 2008, in Case C-275/06, the ECJ ruled that user data exchanging files through P2P systems did not may be disclosed in order to allow prosecution against them by authors (music, audiovisual, etc.) in case of illegal exchange of works.
(The architecture of a peer-to-peer network Source: Wikipedia).
In particular, the background to the case is as follows: The Spanish association Promusicae has filed an application against Telefónica, an Internet access provider, to compel it to disclose the identity and physical address of certain persons to whom it provides access services used by the KaZaA program for illegal reproduction of works. That application was upheld and Telefónica filed a notice of appeal before a Spanish court, which then referred a question to the Court of Justice for a preliminary ruling. The content of the question was as follows:
'It is permissible, according to artand in particular Article 15 (2) and Article 18 of Directive [2000/31], under Article 8 (1) and (2) of [Directive 2001/29], Article 8 of Directive [2004/29 / 48] and Article 17 (2) and Article 47 of the Charter ... Member States to restrict themselves to criminal investigations or to protection of public security or national defense and therefore to exclude, in the case of civil proceedings, the obligation of network operators and the provision of electronic communications services, on the basis of telecommunications networks and data storage service providers to maintain and have data of connection and movement generated by communications made during the provision of an information society service?
In interpreting Directive 2002/58, the Court of Justice accepted that the exceptions to the obligation to ensure the confidentiality of traffic data did not refer to issues concerning civil disputes, such as those at issue, concerning national security, national defense and public security, the prosecution of criminal offenses. Also, the protection of copyright as provided for in Directives 2000/31 (Articles 1 § 5b, 2001/29 (Article 9) and 2004/48 (Article 8 § 3e) does not imply the shrinking of personal data protection.
In conclusion, the Court has concluded that the abovementioned Directives do not oblige Member States, in cases such as the illegal reproduction of works on the Internet, to communicate personal data in order to ensure the effective protection of copyright in civil proceedings. It is true that Community law requires the Member States, when transposing those directives, to ensure that they are based on an interpretation which makes it possible to ensure a fair balance between the various fundamental rights protected by the Community legal order. And yet, against the national authorities and courts of the Member States are required not only to interpret their national law in a manner consistent with the same directives but also not to rely on an interpretation of what might to conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.
The consequence of this decision is that it is impossible to look up the PC user data based on the IP number, the current Internet connection number, and more specifically, it is clear that Internet service providers are not required to notify the data of their subscribers who are involved in the illicit trafficking of protected works (music, audiovisual, etc.) to authors or organizations for the collective exploitation of intellectual property rights. This does not, of course, exclude the adoption of specific legislation by Member States providing for the disclosure of personal data of Internet users in cases of copyright infringement. However, it would again be a risk for a state to introduce similar legislation,
Ioannis Igleszakis
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