In the course of infringement proceedings, the right-holder may request an infringer and/or other involved persons (e.g. intermediaries such as an online video-sharing platform in this case) to provide name and address of users-infringers. But what does the notion of ‘address’ refer to? Would the provision of other than a postal address (such as email address, telephone number, and/or IP address) be compliant with data protection regulations?
This was the core of the referral from the Bundesgerichtshof [the German Federal Court of Justice] in the case of Constantin Film Verleih GmbH recently decided by the Court of Justice of the European Union (CJEU) (C-264/19), where the film producer requested an online platform operator to provide such information about the users, who uploaded a film onto the online platform without the copyright holder’s consent.
Under Article 8 of the Enforcement Directive (2004/48/EC), in the context of proceedings concerning infringement of an intellectual property right, the competent judicial authorities may order that certain information on the origin and distribution networks of the infringing goods or services be provided. Such information comprises the names and addresses of certain categories of persons linked with infringing work, such as producers, manufacturers, distributors, and also (as is the case here) users-infringers.
According to the Court, as there is no reference to the laws of Member States, the term “addresses” constitutes an autonomous concept of EU law and must be given an independent and uniform interpretation. Lacking the definition in the Enforcement Directive, the relevant meaning should be determined in accordance with its usual meaning in everyday language, while also taking into account the purpose and the context in which it occurs.
The Court took the above into consideration and held that the use of the term “address” refers only to the postal address (i.e. “the place of a given person’s permanent address or habitual residence”). Hence, it ruled that under the Enforcement Directive an intermediary (such as an online platform operator) is not required to provide the e-mail address, telephone number, and IP address which the user used for uploading the infringing files or for its last access.
With this interpretation, the Court no longer had to address the issue from the perspective of the data protection regulations and deal with balancing the interests of the copyright holders on the one hand and the protection of the interests and fundamental rights of users-infringers on the other hand.
Nevertheless, as it follows from Article 8 (3) (a) of the Enforcement Directive, it is open to the Member States to grant copyright-holders the right to receive fuller information. In such a case, the issue of the protection of the user’s personal data would have to be taken into consideration, as well as other general principles of EU law, such as the principle of proportionality.