Privacy vs. Piracy
The entertainment industry’s efforts to crack down on illegal downloaders recently suffered a blow when the European Court of Justice (“ECJ”) ruled that, due to privacy concerns, internet service providers (“ISPs”) cannot be compelled to disclose the identities of alleged file sharers. The ECJ concluded that the laws of the European Community do not allow for the forced disclosure of information that could lead to the discovery of the identities of file sharers. The decision can be perceived as a setback for the music industry which, to date, has used such information to file lawsuits against individuals believed to be engaging in illegal file swapping and downloading.
The ECJ’s consideration of the issue arose out of a Spanish case involving Promusica, a Spanish nonprofit organization that represents musical and video producers. Promusica had asked the Spanish courts to order Telefonica to disclose the identities and physical addresses of certain individuals to whom Telefonica provided internet services. The group had been seeking the identities of individuals it believed to be engaged in illegal file swapping and planned to use that information in connection with civil law suits.
Through appeals, the case made its way to the ECJ, which ruled that: “Community law does not require the member states, in order to ensure the effective protection to copyright, to lay down an obligation to disclose personal data in the context of civil proceedings.”
In addition to serving as a setback to the music industry in its pursuit of illegal file swappers, the decision also raises interesting questions. In rendering a clear decision, the court also acknowledged that member states must balance “the right to respect for private life on the one hand and the rights to protection of property and to an effective remedy on the other.” In fact, the court’s decision left the door open for countries to implement rules to allow for the sharing of such records – as long as the rules balance the need for privacy.
