The right to privacy and the right to intellectual property in internet: the promusicae case, a significant judgement of the european court of justice

• Author: Mercedes Soto García
• Position: University Of Cadiz, Jerez De La Frontera (Cadiz)
• Pages: 188-194

Page 188

Living in the information society brings into the daily life of every citizen features and services that incorporate a new perspective in the protection of fundamental rights.

The new technology, the massive access of population to the worldwide system of communications, the use of formats and supports different from the traditional ones and subject to constant changes, are some of the elements that make up that new perspective, the one of the virtual world, for whose treatment the habitual legal mechanisms, those that are used in the real world are not effective.

Community law is not alien to this recent problematic that concerns the settings needed for the accomplishment, without obstacles and on equal conditions, of the inner market in electronic communications sector. In this new scenario, there are two fundamental rights especially involved, often opposite, the right to private life or to privacy, and the right to intellectual property.

Therefore, when dealing with those settings, Community rules, and thus national rules, must pay attention to some aspects related to the protection of the fundamental rights that can be affected in a significant way by using the electronic communication networks and services.

The right to privacy, whose basic status was already defined by Warren and Brandeis in 1899, protects «the sacred precincts of private and domestic life» [1], and, in their perspective, provides to every person «the right to be let alone».Page 189

Nevertheless, the potential attempts to private life, and specifically to personal data, issued from the technological progress, have added an active perspective to enable an individual to control all management and processing data which could concern him or her. As a result, many States guarantee the right to be informed when personal data was processed, the right to know the reason for this processing, the right to access the data and if required, the right to have the data amended or deleted. [2] But these legislations are not always coincident and, in the European Union, the differences could raise some troubles to the flow of information among States. On the other hand, copyright holders can see their legitimate expectations frustrated because of a fraudulent use of telecommunications system.

One of the conflictive situations brought about by the information society gives rise to the sentence of the European Court of Justice (hereafter, ECJ), C-275/06, of January, 29, 2008, the Promusicae case.[3] That is the problem derived from the hard conciliation between the respect to personal privacy with the protection due to intellectual property and particularly, to copyright. The infringements of copyright using the network of internet are at the origin of the lawsuit before the national judge, although the consequences of the ECJ conclusions could be applicable, beyond this illegal use of the network, to other situations developed through the telecommunications system. The Court approves of limits to the privacy to safeguard other persons' rights, and these limits are sanctioned to damage the confidentiality of personal data, generated by the traffic in the electronic communications. In spite of the Court's praiseworthy efforts to balancing the rights concerned, the judgement creates an instrument that entails a danger for freedom. The task was not easy for the ECJ and so the judgement is long, complex, with a cautious approach to the problem, finally leaving the decision to the Member States.

Productores de Música de España, (hereafter, Promusicae), is a Spanish nonprofit- making organisation, acting on behalf of its members, copyright holders and holders of related rights (producers and publishers of musical and audio-visual recordings). It applied, in November 2005, to the Juzgado núm. 5 de lo Mercantil de Madrid against Telefónica, an internet services provider, for preliminary measures to oblige the latter to disclose personal data of peer to peer users, in order to start civil procedures. Promusicae alleged that these persons, whose direction «IP», dates and hours of internet connection were known, made use of KaZaA file exchange software to store and exchange music files which Promusicae members were copyright holders. The Spanish judge, at first, acceded and ordered Telefónica to disclose the personal data required, but Telefónica opposed and argued that Spanish law authorized the communication of these data only in a criminal investigation or for the purpose of safeguarding public security and national defence, not in civil proceedings or as a preliminary measure relating to civil proceedings. Promusicae replied by arguing the interpretation of Spanish law accordingly to Directives 2000/31, 2001/29 and 2004/48 and with Articles 17.2 and 47 of the Charter of Fundamental Rights of the European Union (hereafter, the Charter), provisions which would not allow Member States to limit solely to the purposes expressly mentioned in that law the obligation to communicate the data in question. [4] The Judge stayed the proceedings and consulted the ECJ for a preliminary ruling, submitting the following question: «Does Community law, specifically Articles 15(2) and 18 of Directive [2000/31], Article 8(1) and (2) of Directive [2001/29]...