Just a quick comment and then a roundup of comments on the Promusicae decision of last week. Read the decision here from the European Court of Justice (alternative link).

In this case, the question was whether the European directives on copyright law and on electronic commerce (and relevant provisions of the new Charter of Fundamental Rights) required a member state to provide for the disclosure (by ISPs, to rights holders) of the identities of Internet users. And the answer, it seems, is that, in the context of other European directives on privacy and data protection and those fundamental rights again, such is not *required*, although it’s not entirely clear whether member states are *permitted* to do so anyway. Such is reserved for another day, with the general warning that the factors are the various directives, fundamental rights, and proportionality. That means, though, that the local court (Spain) has to figure out whether the disclosure is justified in this particular case (it was, in that characteristic feature of European Union law, a preliminary reference to the ECJ). I did comment on Damien’s post back in the summer that the opinion of the Advocate General was just that – an opinion – but it seems that the Court has followed it quite closely.

The Irish caselaw on this point is an ex tempore decision, EMI v Eircom. The position here is thus that details can be handed over with a court order. I wonder if there is any scope for a future case along similar lines being heard in the context of the more detailed criteria set out by the ECJ? Certainly, the situation in that case was not a satisfactory hearing of all the legal issues (including the fundamental rights or proportionality impact) that one would think that the ECJ’s line would now demand. (However, if I understand it correctly, the court’s power to grant such an order is a common law one (albeit in the context of the copyright offences where they exist), not flowing directly from copyright law nor from the EU directives as implemented domestically?)



  1. Nic Suzor says:

    Hi Daithi – in Australia, we went through some of this at the Federal Court level at the time of the Kazaa case a couple of years ago. I have an article criticisng the willingness of the Australian Federal Court to grant Anton Piller orders without really considering the threshold tests:

  2. Daithí says:

    Morning (or evening), Nic. Thanks for the link. Another take on it was the BMG cases in Canada (first instance and appeal, where the motions for disclosure of identity were denied (and von Finklestein, the first instance judge, wouldn’t even accept that there was an actual breach of copyright, a still-controversial finding). Privacy was a major factor there, too.

  3. Lilian says:

    I’ve added a comment on this too – in the UK of course we have the very unsatisfactory Totalise v Motley Fool decision (the less read costs decision no 2 in T v M is actually more interesting.)

  4. Daithí says:

    Updated the post. It’s also interesting (although not entirely a surprise) to compare Motley Fool with last week’s California case (Krinsky (PDF)).

    Good luck with all the writing ;)

  5. [...] should see a rights-based analysis. For example, the ECJ’s decision in the Promusicae case (discussed here) shows how the rights of copyright holders are not the only things on the cards, and that privacy [...]

  6. [...] with the Directive. What do you think? I’m reaching this conclusion independently of the Promusicae case (where the difficult question of disclosure of subscriber data in connection with IP law was [...]

  7. [...] Diane Rowland (Aberystwyth) spoke about the Promusicae case (see here), noting that it deals with five directives and 20 specific Articles and raises many more questions [...]

Leave a Reply