Email, telephone and IP addresses are not “addresses” under Enforcement Directive says Advocate General

Member states can enact other measures to allow identification of people allegedly infringing rights: Advocate General's opinion in Constantin Film v YouTube LLC

Advocate General Saugmandsgaard Øe has given an opinion in Constantin Film v YouTube LLC, Google Inc (Case C-264/19) that Article 8(2)(a) of the Enforcement Directive (2004/48/EC) does not cover email addresses, telephone numbers and IP addresses. 

The case arose in the context of a dispute between a film distributor, Constantin Film, and YouTube. YouTube and Google refused to provide Constantin Film with the email addresses, telephone numbers and IP addresses of users who had posted online films onto YouTube in breach of Constantin Film’s intellectual property rights. 

Under Article 8 of Directive 2004/48, certain information must be provided in the context of proceedings concerning an infringement of an intellectual property right. The German courts asked whether Article 8(2)(a) meant that for a user who has uploaded files which infringe an intellectual property right, the email address, the telephone number, the IP address used to upload those files and the IP address used when the user’s account was last accessed, be provided.

The concept of “names and addresses” is a notion of EU law which must be given an autonomous and uniform interpretation. It is not defined in Directive 2004/48. EU case law requires that the meaning and scope of terms for which EU law provides no definition must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part. 

Therefore, the usual meaning in everyday language must be the starting point in the process of interpreting the concept of “names and addresses” used in Article 8(2)(a). There was little doubt that, in everyday language, the concept of a person’s “address”, about which the referring court asks in particular, covers only the postal address.

The AG said that telephone numbers could not be included in the concept of “names and addresses”, whether in everyday language or in any other context. The concept also did not cover email address or IP address when used without further clarification. This is especially the case in a general context, going beyond the strict context of the internet.

To the AG’s knowledge, there were no examples of EU legislation where the terms “names and addresses”, used alone and in a general context, refer to the telephone number, IP address or email address. This was backed up by the travaux préparatoires leading to the adoption of Directive 2004/48. 38. The European Commission explained that, when Directive 2004/48 was adopted in 2004, the EU legislature had never intended to include more modern forms of an ‘address’, such as the email address or the IP address. Accordingly, it followed from a historical interpretation that Directive 2004/48 must be interpreted as referring to only the traditional meaning of that term, namely the postal address.

Constantin Film Verleih contested that interpretation, focusing on the purpose of Article 8 of Directive 2004/48 and, more generally, the objectives of that directive. They argued that the purpose was to enable the holder of intellectual property rights to identify the persons mentioned in that provision so any information which identifies a person should be included. 

The AG said that to adopt that interpretation would be tantamount to the Court rewriting that provision. It was open to the legislature, if that had been its intention, to include, in Article 8(2), “any information that makes it possible to identify” the persons concerned. The European Commission had emphasised that the EU legislature had expressly chosen to provide for minimum harmonisation limited to names and addresses, without including other items of information which enable a person to be identified, such as a telephone number or social security number.

The terms used in Article 8(2)(a) did not offer sufficient room for interpretation to enable a dynamic or teleological interpretation with a view to including the information set out in the questions referred for a preliminary ruling.

In the context of this case the requested information was personal data and it was clear that the protection of intellectual property is not to hamper the protection of personal data. Intellectual property provisions were drafted to balance the rights of various parties and adopting the interpretation requested would favour the interests of holders of intellectual property rights.  It would also run counter to the minimum harmonisation model. In addition, member states were able to adopt additional measures to target online behaviour.

Therefore the AG proposed that the Court should answer the questions referred as follows:

Article 8(2)(a) of Directive 2004/48 must be interpreted as meaning that the concept of “names and addresses” set out in that provision does not cover, in respect of a user who has uploaded files which infringe intellectual property rights, the email address, the telephone number, the IP address used to upload those files or the IP address used when the user’s account was last accessed.  Accordingly, EU member states are not obliged, under that provision, to provide for the possibility, for the competent judicial authorities, to order that that information be provided in the context of proceedings concerning an infringement of an intellectual property right.

Published: 2020-04-07T11:00:00

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