EU court rules in Telenet copyright case: ISPs can be forced to hand over some customer data use details

Belgian firm must produce the IP addresses of BitTorrent users


Europe’s top court has ruled ISPs can be forced to hand over the details of customers who are alleged to have downloaded material illegally online - but only if they meet certain criteria.

That’s the latest judgement in another case involving Cyprus-based Mircom International Content Management Consulting, and Belgian ISP Telenet.

The complex case - which involves a number of legal arguments - appears to pivot on the balance between enforcement of IP rights and the data protection of the individuals accused of infringing them.

According to court papers, Mircom holds the rights of a “large number of pornographic films” produced by eight operations in the US and Canada.

The case started when Cyprus-based Mircom demanded that Telenet hand over customer details linked to IP addresses gathered by a separate German-based company on behalf of Mircom.

Mircom alleged that these IP addresses had been used to “share films in the Mircom catalogue.”

Telenet dug in its heels and refused, which prompted Mircom to start legal action in June 2019 when it brought the case before the Companies Court in Belgium – the Ondernemingsrechtbank Antwerpen.

Seeking further guidance, the case was then passed to the Court of Justice of the European Union (CJEU) which, among other things, interprets the law to make sure it is applied in the same way in all EU countries.

In its preliminary finding published last week, the CJEU found that customer details can be handed over as long as it is done in a way that is "justified, proportionate and not abusive."

The court interpreted the relevant legislation, read together, as meaning that the laws did not prevent:

the systematic recording... of IP addresses of users of peer-to-peer networks whose internet connections have allegedly been used in infringing activities, nor the communication of the names and of the postal addresses of those users to that rightholder or to a third party in order to enable it to bring claim for damages before a civil court for prejudice allegedly caused by those users, provided, however, that the initiatives and the requests to that effect by that rightholder or such a third party are justified, proportionate and not abusive and have their legal basis in a national legislative measure.

The ruling – which spans some 14,000 words – was requested after the Ondernemingsrechtbank Antwerpen had "doubts as to the merits of Mircom’s application" and sought clarification in three areas.

First, that due to the “decentralised nature of peer-to-peer networks” (the customers were accused of sharing the flicks through the BitTorrent file-sharing network) could those involved could have legally been deemed to have communicated copyright material? Or, in other words, was there a case to answer?

The second area that needed clarification was whether Mircom was “able to benefit from the protection conferred by EU law in respect of the enforcement of intellectual property rights, since Mircom does not actually exploit the rights acquired by the film producers, but is merely claiming damages from alleged infringers.”

“Such conduct corresponds almost precisely to the definition in legal literature of a ‘copyright troll’,” said Advocate General, Maciej Szpunar, publishing his legal opinion on the case in December 2020.

Finally, the court expressed doubt about the way the IP addresses had been collected in the first place.

Summarising the issuing facing EU judges the AG said that the case will have to take into account “the relationship between, on the one hand, the necessary judicial protection of intellectual property rights and, on the other, protecting the personal data of possible offenders.”

Now that the CJEU has published its view, lawyers on both sides of the argument will be picking over the details before it heads back to the court in Antwerp.

In July 2019, Virgin Media's lawyers managed to see off a group of copyright owners - including Mircom – that tried to force the British ISP to hand over the personal details of people for allegedly downloading copyrighted pornographic movies. ®

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