(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.