Key facts of the case:
The applicants were music companies who obtained information from Eircom, a major telecommunications and internet service company in Ireland. This information consisted of the copyright title, time and temporary IP address of individuals who were unlawfully sharing copyrighted materials online. The respondent was the Data Protection Commissioner, who issued an enforcement notice directing Eircom to cease providing such information to the music companies. The companies challenged the legality of the enforcement notice.
Outcome of the case:
14.0 In the result, the enforcement notice of 11 January 2012 is invalid in failing to give reasons. Such reasons as appear to underpin it, to the extent that these can be at all ascertained, involve a misconstruction of the relevant law. The enforcement notice is therefore quashed. Such guidance as is appropriate is given in this judgment in the hope of providing some clarification.
14.1 I will hear submissions as to a stay to facilitate any appeal to the Supreme Court, the referral of questions to the Court of Justice of the European Union having been rejected by all parties, and as to costs and as to the possible measurement thereof.
8.7 Very similar questions arose in another referral from the courts of Brussels to the Court of Justice of the European Union in Case C-36O/lO Belgisch.e Vereniging uan Auteurs, Componisten en Uitgeuers CWA (SABAM) u Netlog iW. This time the blocking order was sought against a social networking site. The injunction in question required what was described as "the installation of an expensive general monitoring system". That system seems also not to have been sufficiently tested. Such an order was a serious imposition on the hosting service provider's right to conduct a business. The Court held that it infringed the fundamental rights of the users to protection of their personal data and their freedom to impart information; in such circumstances, the rights of the copyright owners must give way. It is clear, however, from paragraphs 41 to 51 of the judgment that it is not at all in the instance of every application for an order to prevent copyright infringement that competing rights will require the refusal of an injunction in support of copyright: ‘The protection of the right to intellectual property is indeed enshrined in Article 1l7(2) of the Charter of Fundamental Rights of the European Union ("the Charter"). There is, however, nothing whatsoever in the wording of that provision or in the Court's case-law to suggest that that right is inviolable and must for that reason be absolutely protected ... As paragraphs 62 to 68 of the judgment in Case C-275/O6 Promusicae [20081 ECR I-271 make clear, the protection of the fundamental right to property, which includes the rights linked to intellectual property, must be balanced against the protection of other fundamental rights. More specifically, it follows from paragraph 68 of that judgment that, in the context of measures adopted to protect copyright holders, national authorities and courts must strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures. Accordingly, in circumstances such as those in the main proceedings, national authorities and courts must, in particular, strike a fair balance between the protection of the intellectual property right enjoyed by copyright holders and that of the freedom to conduct a business enjoyed by operators such as hosting service providers pursuant to Article 16 of the Charter ... In the main proceedings, the injunction requiring the installation of the contested filtering system involves monitoring all or most of the information stored by the hosting service provider concerned, in the interests of those rightholders. Moreover, that monitoring has no limitation in time, is directed at all future infringements and is intended to protect not only existing works, but also works that have not yet been created at the time when the system is introduced. Accordingly, such an injunction would result in a serious infringement of the freedom of the hosting service provider to conduct its business since it would require that hosting service provider to install a complicated, costly, permanent computer system at its own expense, which would also be contrary to the conditions laid down in Article 3(1) of Directive 2OO4/48, which requires that measures to ensure the respect of intellectual-property rights should not be unnecessarily complicated or costly ... In those circumstances, it must be held that the injunction to install the contested filtering system is to be regarded as not respecting the requirement that a fair balance be struck between, on the one hand, the protection of the intellectual-property right enjoyed by copyright holders, and, on the other hand, that of the freedom to conduct business enjoyed by operators such as hosting service providers ... Moreover, the effects of that injunction would not be limited to the hosting service provider, as the contested filtering system may also infringe the fundamental rights of that hosting service provider's service users, namely their right to protection of their personal data and their freedom to receive or impart information, which are rights safeguarded by Articles 8 and 11 of the Charter respectively.