Tuesday, November 09, 2010

Are Norwich Pharmacal orders compatible with the Data Retention Directive?

Interesting news from Sweden, where a court has made a preliminary reference to the ECJ which calls into question the use of information held under the Data Retention Directive to identify users accused of copyright infringement. According to a report in Intellectual Asset Management:
The request for a preliminary ruling was made by the Supreme Court in a copyright litigation case between five audiobook publishers, and Perfect Communication AB, an ISP. Before the case reached the Supreme Court, the audiobook companies had requested the district court to order Perfect Communication to reveal information regarding the name and address of the registered user of a certain IP address, who was suspected of infringing copyrights in a large number of popular audiobooks...

On 25th August 2010 the Supreme Court requested a preliminary ruling from the ECJ on two questions:

* Whether the Data Retention Directive prevents the application of a national rule based on the EU IP Rights Enforcement Directive (2004/48/EC), which provides that an ISP in a civil case can be ordered to provide a copyright owner or a rights holder with information on which subscriber holds a specific IP address assigned by the ISP, from which address the infringement is alleged to have taken place.
* Whether the answer to the first question is affected by the fact that the state has not yet implemented the Data Retention Directive, although the deadline for implementation has passed.
While the full text of the reference isn't available, the ISP's case seems to be based on the interaction between the ePrivacy Directive and the Data Retention Directive. In particular it appears to argue that data stored under the Data Retention Directive should only be made available to national authorities for the purposes of that Directive - not for other, unrelated purposes (such as civil actions against filesharing). If successful, the implications would be far reaching and would at the very least require the Irish and UK courts to revisit cases such as EMI v. Eircom which deal with Norwich Pharmacal orders identifying internet users.

(My thanks to Niall Handy for pointing out this case.)

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