Wednesday, January 30, 2008

ECJ strikes balance between IP and data protection

(via Cedric Manara) The European Court of Justice has decided on a case in which it calls for a balance to be struck between intellectual property rights and the protection of personal data. Enter Case C-275/06, Productores de Música de España v Telefónica de España. This is your average P2P downloads privacy case, pitting ISPs against the music industry. The question in these cases is usually the same: should ISPs disclose personal data when dealt with a request by a content provider? It is easy to find out the ISP where a file-sharer is connected, so most P2P enforcement cases fall into the issues of privacy and data protection.

This particular case is no different, Promusicae is a collective association of Spanish musicians, which initiated civil procedures against Spanish ISP Telefónica in order to obtain the identity of users sharing music through KaZaA. The court in first instance granted the request, but Telefónica appealed on the grounds that data protection law does not present an exception on the disclosure of personal data for civil cases, only for criminal proceedings. This is what makes this case so important in my opinion, the EU has in place directives dealing both with copyright and data protection. When confronted with a conflict, what should national courts do?

There are two directives in conflict, Privacy on Electronic Communications (2002/58) and Copyright (2000/31). The court first tackles privacy and data protection, and claims that the directive "does not preclude the possibility for the Member States of laying down an obligation to disclose personal data in the context of civil proceedings." Then the Court tackles copyright directive, and concludes that none of the IP directives "require the Member States to lay down, in order to ensure effective protection of copyright, an obligation to communicate personal data in the context of civil proceedings."

Therefore the Court is compelled to issue a balance. EU law does not require the Member States, in order to ensure the effective protection of copyright, to lay down an obligation to disclose personal data in the context of civil proceedings. The Court's decision reads:

"...Member States must, when transposing the directives on intellectual property and the protection of personal data, rely on an interpretation of those directives which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, 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 the 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."
The word Salomonic springs to mind.


Anonymous said...


I can see why the ECJ took a balancing approach, when considering that protecion of presonal data and copyright but on closer reading, the key part of this judgment is para. 53:

"It is clear, however, that Article 15(1) of Directive 2002/58/EC ends the list of the above exceptions with an express reference to Article 13(1) of Directive 95/46/EC. That provision also authorises the Member States to adopt legislative measures to restrict the obligation of confidentiality of personal data where that restriction is necessary inter alia for the protection of the rights and freedoms of others. As they do not specify the rights and freedoms concerned, those provisions of Article 15(1) of Directive 2002/58 must be interpreted as expressing the Community legislature's intention not to exclude from their scope the protection of the right to property or situations in which authors seek to obtain that protection in civil proceedings."

Let's not forget that IP addresses (static and refer to the individual) are regarded as "personal data" - please see Art. 29 Working Party Opinion ( - not convinced why there is a big fuss over whether IP addresses are personal data or not (see the above case is indicative that we are dealing with personal information!

Rebecca W.

pangloss said...

RE Rebecca's comment on para 53, Yes the ECJ could have taken a stronger line and said that disclosure of traffic data under Art 5(1) PECD is simply NOT allowed for civil litigation purposes as opposed to criminal, security etc purposes - but that would have been wildly controversial.

I do think the decision veers in the direction of a thinly veiled warning to the music industry that IP rights canot trample over privacy rights and is to be cheered on in that respect - see my blog version,