In Promusicae v Telefónica de España, the European Court of Justice (ECJ) was asked whether member states are required to lay down an obligation to provide personal data to IP owners to allow copyright owners to launch civil proceedings against alleged infringers.
The Court said that there was no obligation.
The decision will come as a blow to the music industry, which was hoping for clear support from Europe’s top court for its policy of targeting ISPs in its fight against piracy. The IFPI, which represents record companies around the world, last week issued its 2008 Digital Music Report in which it concluded: "2007 was the year ISP responsibility started to become an accepted principle. 2008 must be the year it becomes reality."
The case began when Promusicae, a Spanish industry organization that represents producers and publishers of music and audiovisual recordings, asked a Madrid court to order communications company Telefónica to reveal the identities and addresses of people believed to be downloading music illegally on the KaZaa peer-to-peer network.
Telefónica argued that Spanish law only required it to provide this kind of data in a criminal investigation or for the purpose of safeguarding public security and national defence.
The Spanish court referred the case to the ECJ. In its ruling, the Court concluded that the European directive on privacy and electronic communications does not preclude the possibility for member states to include in their own laws an obligation to disclose personal data in the context of civil proceedings. However, the Court went on to say that neither does the directive compel member states to lay down such an obligation.
The decision means that each of the EU’s 27 member states will be able to decide whether to force ISPs to disclose data about individuals that would allow IP owners to bring infringement proceedings against them.
In reaching its conclusion, the Court said that there was a need to reconcile the requirements to protect different fundamental rights: on the one hand the right to respect private life, and, on the other, the right to protection of property and to an effective remedy.
"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," the ECJ said.
"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."
Quentin Archer, a partner with Lovells, said that the decision might disappoint IP rights owners, since it makes it clear that there is a lack of harmonization in Community law in relation to the interplay between the right to privacy and property rights. As a result, rights owners who successfully identify infringers in one jurisdiction may not succeed in another.
But he added: "Community legislation is vague in this field, and there is therefore plenty of scope for lobbying by rights holders to encourage legislators to ensure that there is a uniform procedure for the identification of infringers across the Community."
The IFPI conceded that the ruling does not oblige member states to disclose data for civil proceedings, as many of its members had hoped for. But it said that the decision "does clearly oblige them to strike a balance between respect for privacy on the one hand and the right to protection of property and to effective remedies on the other".
The IFPI continued in a statement: "In our view, this should ensure that copyright holders must have the ability to obtain the information they need to enforce their rights and obtain effective remedies."
Francine Cunningham, in the IFPI’s European office, told Managing IP that the decision did not affect discussions between ISPs and rights owners in a number of jurisdictions about ways to cooperate to tackle piracy.
