FTD World’s websites (www.ftdworld.net and www.ftdworld.com) offer films, music, books, etc. without the copyright owner’s consent. The websites are hosted by a Russian service provider. BREIN, as society aiming at the protection of intellectual property rights of the entertainment industry, wanted to tackle FTD World’s activities but had been unsuccessful so far.
According to BREIN, the bank account number mentioned on the websites was the only link to the actual infringers. This account number was registered to an 86-year-old lady who resides in Surinam since 2009. Since it seemed that someone else had been granted a power of attorney on this account, BREIN was unable to establish the real identity of the person managing the account. In light thereof, BREIN demanded Dutch Bank ING to disclose (i) all identifiable data of individuals who are authorised to use this account, (ii) the locations and times of cash withdrawals from this account and (iii) the bank account number to which money has been transferred. Taking into account the Dutch Personal Data Protection Act, ING met this demand only partially because it believed that it may not disclose the personal data of the account’s particular authorised individual. Consequently, BREIN initiated interlocutory proceedings against ING, seeking to obtain the data.
The Court of Amsterdam heard the case and considered that it comes down to balancing the interests of the parties involved: BREIN’s legitimate interest to protect the interests of copyright owners, on the one hand, and the privacy of ING clients and ING’s obligation to respect and protect the privacy of its clients, on the other (Section 8, subsection f, Dutch Data Protection Act). ING argued that there are alternative ways to identify those responsible for FTD World. For instance, BREIN did not try to contact the Surinam lady. ING also believed that BREIN can do more in investigating who the domain name owner is or who is behind the Russian service provider. The Court followed ING’s argument, saying that ING has furthermore reiterated rightfully the exceptional position that banks have taken up with regard to legal and financial transactions. Clients should be able to trust their bank and such trust means that, among other things, clients’ personal data may only be provided to third parties in highly exceptional cases. The Court therefore ruled that ING acted lawfully when it refused to provide some of the data requested by BREIN. Source: Court of Amsterdam 14 May 2013, ECLI:NL:RBAMS:2013:CA0350