EU court: ISPs need not always disclose subscribers' names

A European Court of Justice ruling this morning appears on the surface to reaffirm the rights of Internet users from having their data subpoenaed in civil trials. But a deeper read of the ruling shows the high court left the matter wide open.

The right of privacy among Internet users trumps the rights of copyright holders to pursue prospective infringers, at least insofar as civil matters are concerned. This was the finding this morning, Belgium time, of the European Court of Justice, in a ruling stating that member states need not compel a defendant ISP in a copyright infringement trial to turn over data on its members to an aggrieved plaintiff.

Contrary to reports, however, this isn't the end of the case for the Spanish performers' rights organization Promusicae, in its 2005 case against ISP Telefonica. Promusicae is seeking the identities of prospective defendants in copyright infringement suits, specifically Telefonica clients whose traffic patterns reveal them to have used the P2P file sharing service Kazaa.

The high court simply ruled this morning that the law that binds the EU together, called community law, does not put forth any legal precedent for why an ISP must disclose private information of its subscribers in civil matters. That ruling was sought by the Spanish court, which required guidance on the matter before it could reach a decision of its own.

Specifically first, the Court of Justice had to determine whether there was any precedent for such a mandate in community law; secondly, whether any national law existed within Spain which the EU was obligated to honor; third, whether any Spanish law referred to the charter of the EU with regard to this question.

"It should be recalled that the fundamental right to property," reads this morning's ruling, "includes intellectual property rights such as copyright...and the fundamental right to effective judicial protection constitute general principles of Community law... However, the situation in respect of which the national court puts that question involves, in addition to those two rights, a further fundamental right, namely the right that guarantees protection of personal data and hence of private life."

Rather than pre-emptively tip the balance in favor of one right or the other in all affairs, the high court ruled that national courts such as Spain's must weigh the interests of both against one another very carefully in each individual case, and render their decisions accordingly.

"The answer to the national court's question must be that [three pre-existing EU directives] do not require the Member States to lay down, in a situation such as that in the main proceedings, an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings," ruled the Court of Justice this morning. "However, Community law requires that, when transposing those directives, the Member States take care to rely on an interpretation of them which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order."

In short, the Court of Justice told Spain this morning, it's up to you. The EU has no pre-existing mandates, though it does have community law which appears to put the right to privacy and the right to property on equal footing with one another. If that's the case, quite conceivably, it may have actually become easier for the Spanish court to rule in Promusicae's favor.