Since the previous article, the CJEU decision in Bonnar Audio & Others v Perfect Communication Sweden AB (Case C-461/10) was handed down on 19 April 2012. The applicants in this case were publishing companies which hold certain exclusive rights to 27 audio books which they alleged were being unlawfully distributed by means of an FTP (file transfer protocol) server. The ISP through which this alleged illegal file sharing took place is ePhone.
The legal issues in this case concern the interactions between the Data Retention Directive (Directive 2006/24/EC), the IP Enforcement Directive (Directive 2004/48/EC), the Data Protection Directive (Directive 95/46/EC), the Directive on Privacy and Electronic Communications (Directive 2002/58/EC) and national law.
The applicants had taken successive cases in Sweden for the disclosure of the name and address of the person using an IP address associated with the distribution of the audio books. The legal basis for these cases were provisions of Swedish law which are based on Article 8 of the IP Enforcement Directive which allows such disclosure orders in certain circumstances. Eventually, the matter came before the Swedish Supreme Court which referred a number of questions to the CJEU including whether the Data Retention Directive prevented an order for disclosure of data of this nature.
The CJEU held that the Data Retention Directive, which applies only to specific data and data processors and relates to the investigation, detection and prosecution of serious crime, does not preclude the application of national law based on Article 8 of the IP Enforcement Directive in a case such as this, which related to alleged civil IP infringements.
The CJEU then went a little further and held that Swedish law in this case was 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. This is because the Swedish legislation enables the national court hearing such a disclosure application to weigh the conflicting interests involved on the basis of the facts of each case and apply proportionality. Therefore, the Directive on Privacy and Electronic Communications and the IP Enforcement Directive do not preclude national legislation of this type.