Productores de Música de España (Promusicae) v Telefónica de España C275/06

March 2008

Internet, record labels

Music and film companies suffered a partial setback in their fight against internet piracy after the European Court of Justice ruled that European countries do not have to compel telecoms companies and other internet service providers to disclose information about customers suspected of illegally sharing music files online, the region’s top court ruled yesterday. However, the Court said member states did need to ensure that a “fair balance” was struck between the privacy rights of individuals and the rights of intellectual property owners – such as music and film producers – seeking to pursue civil legal claims over copyright infringement. But IP rights holders insisted the decision was not discouraging. “The court has provided a welcome reminder that there is a balance in law between the rights to privacy and other fundamental rights,” said Christopher Marcich at the Motion Picture Association and the IFPI, which represents the recording industry, put a positive spin on the decision saying “The judgment means that music rights holders can still take actions to enforce their rights, and it has sent out a clear signal that member states have to get the right balance between privacy and enforcement of IP rights.” The ECJ ruling stemmed from a Spanish case in which producers and publishers of musical and audiovisual recordings (Promusicae) demanded Telefonica, the telecoms company, disclose the names and addresses of some of its internet customers which they claimed were all individuals had been using the Kazaa programme to share music files over the internet. Promusicae wanted to sue these individuals in Spain’s civil courts. The Juzgado de lo Mercantil No 5 de Madrid agreed and ordered the disclosure. Telefónica appealed, contending that the communication of the data sought by Promusicae was authorised 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 disagreed, arguing that there relevant provisions of Spanish law must be interpreted in accordance with Community law. The Juzgado de lo Mercantil No 5 de Madrid decided to stay the proceedings and referred the question to the European Court for a preliminary ruling.

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