Duty to provide information about the user who uploaded files infringing an intellectual property right

With the recent judgment of 9 July 2020, the Court of Justice of the European Union has had the opportunity to interpret some provisions of the Directive on the respect of intellectual property rights of the European Parliament and the European Council.

In particular, the Court ruled that when a film is illegally uploaded on an online platform, the holder of the infringing right may, under Directive 2004/48/EC, require the operator to provide only the postal address of the user concerned, but not his e-mail address, IP address or telephone number.

The reference for a preliminary ruling was made in the context of a dispute between, on the one hand, a German film distributor and, on the other, YouTube LLC and Google Inc., regarding information requested by the film distributor concerning users who have infringed its intellectual property rights by illegally uploading a film onto the YouTube platform.

After the parties to the main proceedings had unanimously held that the dispute at first instance concerning the names and postal addresses of the users in question had been formally settled, the following question was referred to the Court of Justice of the European Union for a preliminary ruling: “Do the addresses of the producers, manufacturers and distributors referred to in Article 8(2)(a) of the abovementioned Directive, to which the information referred to in Article 8(1) of that Directive is extended, also cover, where appropriate, the e-mail addresses of the users of the services and/or the telephone numbers of the users of the services and/or the IP addresses used by the users of the services to upload files infringing a right, and the exact time of the upload?

The Court found that, in so far as the provision in Article 8 of the Directive does not contain any express reference to the law of the Member States for the purpose of determining its meaning and scope, the concept of ‘address’ constitutes a concept of Union law which must normally give rise, throughout the Union, to an autonomous and uniform interpretation. Since the directive itself does not define that concept, the determination of its meaning and scope must be carried out in accordance with its usual meaning in everyday language, taking into account both the context in which it is used and the objectives pursued by the legislation of which it forms part and, where appropriate, its origin.

As regards the usual meaning of the term ‘address’, the Court has found that, in current language, it relates only to the postal address, that is to say, the place of domicile or residence of a particular person. It follows that that term does not refer to an email address, telephone number or IP address.

The Court also stated, moreover, that Article 8 of Directive 2004/48 seeks to reconcile respect for various rights, in particular the right to information of data controllers and the right to protection of users’ personal data. However, although it follows from the Court’s considerations that Member States are not obliged under Article 8(2)(a) of the Directive to provide for the possibility of ordering the provision of the email address, telephone number or IP address of the persons referred to in that provision in the context of proceedings for infringement of an intellectual property right, the fact remains that Member States have such a possibility.

Tatiana Karabanova