“Asking ISp for personal data is last resort” judge rules

Only if all other options have been explored, rights holders can demand ISPs to reveal the identity of misbehaving internet users. So reads the verdict of the court of Amsterdam in an the appeal of a case between ISP Ziggo and 123video, a site similar to YouTube.

123video demanded demanded of Ziggo that it reveal the identity of one of Ziggo’s clients that allegedly posted copyrighted material. 123video started the case against Ziggo after the site was itself the target of a lawsuit, commenced by adult entertainment producer Kim Holland, the rights holders of the material.

After the porn producer found her (protected) works on 123video, she demanded that 123video pay 500.000 euros in damages. As 123video has actively manages posted videos, the judge ruled that it is more than a mere conduit and therefore (partly) liable. The video site wanted to find out where the uploader could be reached to pass off the claim.

In the case Lycos/Pessers a few years ago, the court ruled that under specific circumstances, ISPs need to reveal their clients’ identity. In this case, strict requirements were formulated to determine when a provider needs to pass this information. There needed to be substantial reason to believe that unlawful behaviour took place, no reasonable doubt could exist if the right person was targeted and there were no less intrusive methods available to retrieve the identity (subsidiarity test). In a later ruling (Brein/UPC), these requirements were relaxed somewhat. Especially the subsidiarity test was not adhered to as strongly as before.

In this case, the requirements demand that the interests of all the involved (Ziggo’s interest in protecting the privacy of her clients and 123video’s interest in knowing who caused the lawsuit) need to be weighed carefully. The court ruled eventually that 123video had alternative means to contact the uploader. The firm could have used the e-mail address of the uploader. It appears that through this ruling, the judge tightens the requirements again.

The case in question is interesting in relation to the duty of care that ISPs have. ISPs form a natural hub in the internet traffic. Because of their unique position, they are the logical  point of contact in case of illicit behaviour online and have been legally assigned a duty to cooperate in solving corrupted practices. On the other hand, they strive towards limiting exposure of their clients to the attention of governments and companies.