Can the personal data of infringers
to Intellectual Property Owners?
The European Court of Justice does not object to the disclosure of
personal data of infringers to the rightful owners of intellectual
Bonnier Audio AB, a Swedish publisher
of audiobooks, claimed before the Court of Solna (Sweden) that the
Swedish Internet Service Provider, E-phone, should be obligated to
report to Bonnier Audio AB, the name and address of its clients, who
made protected audiobooks available through the use of a file-sharing
The Court of Solna had allowed this particular claim,
despite E-phones defense, which stated that the request violates the
Data Retention Directive (2006/24).
Subsequently, E-phone lodged
appeal and demanded the rejection of the request for disclosure of
personal data. The latter also asked that a prejudicial question would
be formulated to the European Court of Justice concerning the
interpretation of the Data Retention Directive. More specifically, it
should be asked whether the Data Retention Directive (2006/24)
contravenes the fact that a civil party would be compelled to disclose
personal data of a subscriber to a third party, other than a public
The Court of Appeal rejected the order for disclosure
of personal data of one of E-phones clients, given that there was no
substantial proof of any copyright infringement.
Bonnier Audio AB
contested this decision before the High Court, who asked in return a
prejudicial question to the European Court of justice, namely, whether
the Data Retention Directive (2006/24), which provides that the stored
personal data can only be disclosed to the competent public authorities
in particular circumstances and in accordance with the national
legislation, conflicts with the application of the Enforcement Directive
(2004/48), by which, during a civil procedure, an Internet Service
Provider can be obligated to disclose information to an Intellectual
Property Owner concerning its clients, for the purpose of identifying
the latter, to whom the Internet Service Provider has allocated an IP
address, which has been used to violate copyrights.
On April 19th
2012, the European Court of Justice held that the provisions set out by
the Enforcement Directive (2004/48) pursue another goal than those
embedded in the Data Retention Directive (2006/24). The Data Retention
Directive (2006/24) on the one hand, aims to harmonize the national
legislation of the member states, by which the obligation is imposed on
the Internet Service Providers to store the personal data of their
clients for the pursuit of serious crimes. The dispositions of the
Enforcement Directive (2004/48) on the other hand provide the
possibility to disclose data to Intellectual Property Right Owners
during a civil procedure in order to help determine the infringements
committed on intellectual property rights, and thus fall outside the
scope of the Data Retention Directive (2006/24).
claims of civil parties regarding violations of intellection property
rights, it is important to note that neither the Directive concerning
Privacy and Electronic Communication (2002/58), nor the Data Retention
Directive (2006/24) anticipates the possibility or the obligation to
store or use personal data for such purposes.
Hence, the Court
confirmed that the Enforcement Directive (2004/48) and the Directive
concerning Privacy and Electronic Communication (2002/58) has to be
interpreted that it does not conflict with national legislation
resulting from the Enforcement Directive (2004/48), as far as (1) clear
evidence of an infringement of intellectual property is being submitted,
(2) the requested data can facilitate the investigation of an
infringement on copyrights, and (3) the importance of the reasons for
this order outweighs the inconveniences and disadvantages, or any other
conflicting interests for that matter, suffered by the one who is the
subject of the order.
In other words, personal data on the one
hand and intellectual property rights on the other hand, should enjoy
the same protection. Intellectual Property Right Owners cannot be
favoured, by allowing them to use personal data, which is stored
legitimately for purposes with no connection to the protection of their
rights. The collection and the use of data for the protection of
intellectual property rights does have to occur with the utter most
respect to the Union law on the field of the protection of personal
data. Serious proof of an infringement of an intellectual property right
must be present and the conflicting interests of both parties have to
be assessed, bearing the proportionality principle in mind.
the amendment of the law of May 9th 2007, the Belgian patent law and
the Belgian copyright law renders already a provision, which explicitly
foresees in the possibility to request an order for disclosure to an
intermediary. The parliamentary work stresses out that the order for
disclosure of information can only be allowed in so far as the measure
seems justified and reasonable and only if the judge has determined the
existence of a prior infringement.
It seems that the concerns of the Court have been met.
21 May 2012
Griet Verfaillie - email@example.com
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