The ECJ has said that it is up to each country to decide how to
balance the rights of the copyright holders to protect their
intellectual property and the rights of internet users to protect
their privacy.
A Spanish music rights-holder group had attempted to have the
court force telecoms firm Telefónica to disclose subscriber
details, but the court said that Spanish law can be consistent with
EU law whether or not it obliges the disclosure of personal data in
civil proceedings.
Initially the rights-holder group, Promusicae, won its case, but
Telefónica appealed, saying that Spanish law only allowed for the
disclosure of names and addresses of specific users in criminal
cases or those involving national security and not in civil
proceedings.
When Promusicae claimed that Spanish law had to be interpreted
in accordance with EU laws such as the Copyright Directive,
E-Commerce Directive and Privacy and Electronic Communications
Directive, the court asked for the guidance of the ECJ.
It asked was it permissible for national laws to protect the
privacy of internet users in civil cases. The ECJ said it was.
"[The Directives] do not require the Member States to lay down,
in a situation such as that in the main proceedings, an obligation
to communicate personal data in order to ensure effective
protection of copyright in the context of civil proceedings," said
the Court.
It did say, though, that there were some basic rights involved
in the case, and there was a fundamental clash between one person's
right to privacy and another's right to protect their intellectual
property.
The Directives give countries some flexibility in how they are
fixed into national laws. "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," said the ruling.
"They therefore logically include rules which leave the Member
States with the necessary discretion to define transposition
measures which may be adapted to the various situations
possible."
The court, then, ordered EU countries to frame their laws to
take account of the various rights enshrined in the Directives.
"Community law requires that, when transposing those directives,
the Member States take care to rely on an interpretation of them
which allows a fair balance to be struck between the various
fundamental rights protected by the Community legal order," said
the ruling.
"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," it said.
The Court said that it was acceptable for national laws to allow
for the forcing of disclosure in civil proceedings, and acceptable
for them not do force disclosure.
In the UK, and most European countries, copyright infringement
is only criminal on a commercial scale. But in the UK a precedent
set in a case involving Norwich Pharmacal means that disclosure can
happen in civil cases.
Intellectual property specialist Iain Connor, a partner with
Pinsent Masons, the law firm behind OUT-LAW.COM, said 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," he said. "Equally you could get
ISPs choosing to relocate their businesses to countries where
disclosure would not be ordered."
"But in terms of the rationale for the ruling, in some ways it's
actually just preserving the right of member states to have their
own court procedures and in the UK the court procedure is such that
disclosure would almost certainly be ordered," said
Connor. "That potentially puts ISPs in the UK at a commercial
disadvantage to those in Spain on the basis of this ruling."
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