BREAKING: ECJ clarifies the law on access to retained data for IP enforcement purposes

Yesterday, the European Court of Justice (ECJ) has given a preliminary ruling in the Bonnier Audio case (Case C-461/10). In short, the ECJ established that the Data Retention Directive does not preclude member states from enacting laws that allow an Internet Service Provider (ISP) to be ordered to supply information about subscribers whose Internet Protocol addresses have allegedly been used for intellectual property infringing purposes.

The case revolves around the Swedish publisher Bonnier Audio that sued the Swedish ISP Perfect Telecommunication to obtain a court order to disclose the identities of alleged copyright infringers. According to Bonnier Audio, the individuals concerned have uploaded 27 audio books without consent of the publisher. The ISP refused to disclose the requested data because such an order may be contrary to the Data Retention Directive  (2006/24/EC). The court however granted the request for disclosure of the data. Thereinafter, the Stockholm Court of Appeal ruled there was nothing in the Data Retention Directive to prevent a party to a civil dispute being ordered to disclose subscriber data to someone other than a public authority. However, Bonnier had not adduced clear evidence of intellectual property right infringement, so the order was set aside. Bonnier then appealed to the Swedish High Court and this Court asked the ECJ if, assuming such a measure was proportionate, a Member State could introduce legislation which would require telecommunications data to be made available for purposes of intellectual property enforcement.

The ECJ has decided that neither the E-Privacy Directive (2002/58/EC) nor the Intellectual Property Enforcement Directive(IPRED) (2004/48/EC) precludes the abovementioned legislation, provided the legislation enables a national court to weigh the conflicting interests involved in an application for disclosure of personal data, and to take into account the facts of the case and the requirements of proportionality. As long as the order of disclosure is based on evidence and it is proportionate and necessary, the EU legal framework does not preclude a Member State to adopt such a rule, or, more literally (recital 58):

"It must be noted that the national legislation in question requires, inter alia, that, for an order for disclosure of the data in question to be made, there be clear evidence of an infringement of an intellectual property right, that the information can be regarded as facilitating the investigation into an infringement of copyright or impairment of such a right and that the reasons for the measure outweigh the nuisance or other harm which the measure may entail for the person affected by it or for some other conflicting interest."

You can read the Court Ruling here

References: Curia Europe, US Practical Law Company, Edri.org, The IPKat