Miguel_Ortego
Intellectual Property Law

AG ØE stands for not providing emails, phone numbers and IP addresses under art. 8 of Directive 2004/48

The Opinión of the Advocate General («AG») Saugmandsgaard ØE on Constantin v. YouTube (C-264/19), as of April 2nd 2020, stands for an interpretation of art. 8 of the Directive 2004/48/CE on the enforcement of intellectual property rights that precludes de claimant to access sensitive information (such as emails addresses, telephone numbers and IP addresses of the alleged culprit) in the context of proceedings concerning an infringement of an intellectual property right online.

The case is the following: Constantine Film Verleih is a film distributor based in Germany. It has exclusive rights over cinematographic works Parker and Scary Movie 5. In 2013 and 2014 both works were posted, at least three times online on YouTube, without the rightholder’s authorization. Each time the user posting such information was «N1», «N2» and «N3».

Constantine demanded YouTube (on the basis of art. 8 of Directive 2004/48) a set of information about the users who had uploaded those works. The information requested was: (i) the user’s email address; (ii) the user’s telephone number; (iii) the IP address used to upload the files and to access YouTube for the last time (pointing out en both cases the exact point in time when that happened). YouTube rejects to provide such information on the grounds that art. 8 of Directive 2004/48 does not covers it but «names and addresses of the producers, manufacturers, etc.»

Ruling at first instance was against Constantine. On appeal the court ruled in favour of providing the claimant with emails addresses. The Bundesgerichtshof asks for a preliminary ruling on the interpretation of the concept of «addresses» of art. 8.2 of Directive 2004/48.

AG ØE’s view is that such provisión does not cover any of the information requested by Constantine (§27º). As the concepto of «addresses» is neither defined by the directive nor referred to Members States, it must be autonomously interpreted at EU’s level (§28º and 29º). In this line, the AG stress that according to everyday language (to which we must stick), «address» means a postal address and not an email, phone number or IP address.

In fact, «there are 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» (§ 35º). Moreover, the travaux préparatoires of Directive 2004/48 does not reveal that the intention back then was to cover such set of information with the concepto of «addresses» (§37º). Therefore, the claimant’s grounds (that art. 8.2 means «any information that makes it possible to identify») is, somehow, wrong as it demands a kind of rewrite of the Directive (§42º and 43º).

Finally the AG also dismissed the reasoning of the claimant based on the idea that as the Directive seeks a high level of protection for IP rights and widening the interpretation of addresses of art. 8 will achieve that, as, in his opinion, any IP legislation must strike balance between, «on the one hand the interest of holders in protecting their intellectual property right, enshrined in Article 17(2) of the Charter and, on the other, the protection of the interests and fundamental rights of users of protected subject matter, and the public interest» (§51º). Given the set of information requested is personal data (covered by a fundamental right), a high level of IP rights cannot hamper, inter alia, personal data guaranteed by art. 8 of the Charter (which means, also, that Directive 2004/48 cannot affect Directive 95/46 neither).

Imagen: DW

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