On 29 January, the European Court of Justice (“ECJ”) handed down its decision in the case of Productores de Música de España (“Promusicae”) v. Telefónica de España SAU (“Telefonica”) (C-275/06). Addressing the clash between the protection of copyright and the disclosure of the identities of peer-to-peer (P2P) file sharers infringing copyright, this case has been closely monitored by Internet service providers (ISPs) and copyright holders alike.
In November 2005, Promusicae, a non-profit making organisation comprised of music and audiovisual producers and publishers, applied to the Madrid Commercial Court to request that Telefonica, a telecommunications provider, be ordered to disclose the identities and physical addresses of people who Promusicae alleged had been using the KaZaa P2P file sharing programme to provide access to material in which members of Promusicae held the exploitation rights. In December 2005, Promusicae’s request was granted.
Telefonica, as the provider of Internet access services, held the IP (Internet Protocol) addresses, date and time of connections, as well as the names and addresses of those connecting to the peer-to-peer service. It appealed against the decision on a number of grounds, including that the disclosure of such personal data was authorised by Spanish law only in the course of a criminal investigation or for the purpose of safeguarding public security and national defence, and not for the purposes of civil proceedings.
The Madrid Commercial Court stayed the proceedings and referred a question to the ECJ for a preliminary ruling. It asked whether Community law permits Member States to limit to the context of criminal investigations and the safeguarding of public security and national defence, the duty of operators of electronic communications networks and ISPs to disclose connection and traffic data gathered during the supply of an information society service, thereby excluding such a duty in civil proceedings.
The ECJ held that Community law does not require Member States to lay down an obligation to disclose personal data in the context of civil proceedings, but it does not prevent Member States from doing so. The ECJ reasoned that there is a need for Member States to strike a balance between privacy rights and the protection of intellectual property rights in their national legal systems. When implementing Community law, national laws must be interpreted in a manner that does not conflict with the fundamental rights afforded by the general principles of Community law, such as proportionality, but they do not need to reflect the exact position of other Member States.
In most EU countries, including the UK, copyright infringement is generally only criminal when on a commercial level, but the UK courts have held that disclosure of personal data by third parties can be enforced in civil cases also.
The case has now returned the Commercial Court of Madrid for application of the ECJ guidance. The neutrality of the ECJ decision means that interest in the Spanish Court’s application of the guidance to the specific facts of this case remains high.
For a copy of the ECJ judgment, click here.
