Thursday, April 19, 2012

CJEU: Bonnier Audio - Quite Disappointment

CJEU today rendered its highly awaited decision in Bonnier Audio C-164/10. Author of these lines is however *very very* disappointed by the outcome. It seems to me that the Court of Justice of European Union, does not realize its 'constitutional role' for the member states. The entire decision is pretty much just excerpts from the legislation with additional thoughts that do not really go beyond what we already knew. CJEU in my personal opinion manifestly failed in checking the practice in the several member states against the fundamental rights and also in giving some more clear guidance to the member states courts. Am I too harsh? So what did the Court actually say?

49      The reference made by the national court, in its first question, to compliance with the requirement for clear evidence of an infringement of a copyright and to the proportionate nature of the injunction which would be issued under the transposing law at issue in the main proceedings and, as follows from paragraph 34 of the present judgment, to the judgment in Promusicae, cited above, suggests that the national court is also doubtful as to whether the provisions in question of that transposing law are likely to ensure a fair balance between the various applicable fundamental rights, as required by that judgment, which interpreted and applied various provisions of Directives 2002/58 and 2004/48.

50      Thus, the answer to such an implied question may be relevant to the resolution of the case in the main proceedings.

51      In order to give a useful answer, firstly, it is necessary to bear in mind that the applicants in the main proceedings seek the communication of the name and address of an internet subscriber or user using the IP address from which it is presumed that an unlawful exchange of files containing protected works took place, in order to identify that person.

52      It must be held that the communication sought by the applicants in the main proceedings constitutes the processing of personal data within the meaning of the first paragraph of Article 2 of Directive 2002/58, read in conjunction with Article 2(b) of Directive 95/46. That communication therefore falls within the scope of Directive 2002/58 (see, to that effect, Promusicae, paragraph 45).

53      It must also be noted that, in the main proceedings, the communication of those data is required in civil proceedings for the benefit of a copyright holder or his successor in title, that is to say, a private person, and not for the benefit of a competent national authority.

54      In that regard, it must be stated at the outset that an application for communication of personal data in order to ensure effective protection of copyright falls, by its very object, within the scope of Directive 2004/48 (see, to that effect, Promusicae, paragraph 58).

55      The Court has already held that Article 8(3) of Directive 2004/48, read in conjunction with Article 15(1) of Directive 2002/58, does not preclude Member States from imposing an obligation to disclose to private persons personal data in order to enable them to bring civil proceedings for copyright infringements, but nor does it require those Member States to lay down such an obligation (see Promusicae, paragraphs 54 and 55, and order in LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten, paragraph 29).

56      However, the Court pointed out that, when transposing, inter alia, Directives 2002/58 and 2004/48 into national law, it is for the Member States to ensure that they rely on an interpretation of those directives which allows a fair balance to be struck between the various fundamental rights protected by the European Union legal order. Furthermore, when implementing the measures transposing those directives, the authorities and courts of Member States must not only interpret their national law in a manner consistent with them, but must also make sure that they do not rely on an interpretation of them which would conflict with those fundamental rights or with the other general principles of European Union law, such as the principle of proportionality (see, to that effect, Promusicae, paragraph 68, and order in LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten, paragraph 28).

57      In the present case, the Member State concerned has decided to make use of the possibility available to it, as described in paragraph 55 of this judgment, to lay down an obligation to communicate personal data to private persons in civil proceedings.

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.

59      Thus, that legislation enables the national court seised of an application for an order for disclosure of personal data, made by a person who is entitled to act, to weigh the conflicting interests involved, on the basis of the facts of each case and taking due account of the requirements of the principle of proportionality. [So and at this point, Huťko expected some precise guidance .. but then .. the decision ends]

60      In those circumstances, such legislation must be regarded as likely, in principle, to ensure a fair balance between the protection of intellectual property rights enjoyed by copyright holders and the protection of personal data enjoyed by internet subscribers or users.

61      Having regard to the foregoing, the answer to the questions referred is that:

–        Directive 2006/24 must be interpreted as not precluding the application of national legislation based on Article 8 of Directive 2004/48 which, in order to identify an internet subscriber or user, permits an internet service provider in civil proceedings to be ordered to give a copyright holder or its representative information on the subscriber to whom the internet service provider provided an IP address which was allegedly used in an infringement, since that legislation does not fall within the material scope of Directive 2006/24;

–        it is irrelevant to the main proceedings that the Member State concerned has not yet transposed Directive 2006/24, despite the period for doing so having expired;

–        Directives 2002/58 and 2004/48 must be interpreted as not precluding national legislation such as that at issue in the main proceedings insofar as that legislation enables the national court seised of an application for an order for disclosure of personal data, made by a person who is entitled to act, to weigh the conflicting interests involved, on the basis of the facts of each case and taking due account of the requirements of the principle of proportionality.

Perhaps was the decision too big 'chunk' for the Third Chamber (K. Lenaerts, President of the Chamber, J. Malenovský, (Rapporteur), R. Silva de Lapuerta, E. Juhász and D. Šváby, Judges)? I don´t know, but I found this decision to be everything, but not helpful.

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