A court in Offenburg,
Germany refused to order ISPs to identify subscribers when asked to
by music industry groups who suspected specified accounts were
being used for copyright-infringing file-sharing, according to
German news service Heise Online.
The court said that ordering the handover of details would be
"disproportionate", and that the music industry had not adequately
explained how the alleged actions of subscribers amounted to the
"criminally relevant damage" needed to force the identification of
users.
The ruling follows the publication two weeks ago of an
Advocate-General's opinion prepared for the European Court of
Justice (ECJ) which said that countries whose law restricted the
handing over of identifying data to criminal cases only were
compliant with EU Directives.
Advocate-General Juliane Kokott produced advice for the ECJ on a
Spanish case in which a copyright holders' group wanted ISP
Telefonica to hand over subscriber details to it.
Kokott said that details did not have to be handed over in civil
cases such as Telefonica's, and that they only had to be handed
over in criminal cases. The ECJ does not have to follow an
Advocate-General's advice, but does so in over three-quarters of
cases.
Another German authority had made a similar decision earlier
this year, according Heise Online. The chief prosecutor's office in
Celle refused to offer a handover because it said that substantial
damage had not been shown, and that it doubted that music industry
representatives would use the evidence to bring a criminal
case.
If European authorities begin to refuse to order the hand over
of subscriber details in civil cases it will severely hamper the
music industry's attempts to take civil action against file
sharers.
In most European countries, including the UK, copyright
infringement is only a criminal offence when conducted on a
commercial scale. Most individual file-sharing would be unlikely to
count as a criminal offence.
The ECJ's Kokott said that EU Directives allowed for countries
to have laws refusing to hand over data except in criminal cases.
It was on one such law that Telefonica relied in its case.
"In the first instance the court ordered Telefonica to
communicate the requested information," said Kokott's opinion, in
an unofficial translation from the Spanish produced by OUT-LAW.COM.
"However, Telefonica opposed the order, alleging that in no
situation could it hand over the details given that under article
12 of the [Spanish] IT services and E-commerce legislation, this
data could only be handed over in a criminal investigation or where
it was required for reasons of public safety or national security.
Only in these cases could a service provider be obliged to hand
over the data that by law it is obliged to keep."
The Spanish court in that case asked the ECJ to rule on whether
or not it should order Telefonica to hand over the details in a
civil case, or whether giving details would breach data protection
and privacy laws.
Kokott said that she backed Telefonica's view that ISPs are
obliged to hand over details only in criminal cases, and not in
civil cases.
