Bonnier Audio AB – CJEU Judgment (Sweden, 2012)

The publishing companies Bonnier Audio AB, Earbooks AB, Norstedts Förlagsgrupp AB, Piratförlaget AB and Storyside AB (the "publishers") claimed that their exclusive rights regarding audio books had been infringed by means of an FTP (‘file transfer protocol’) server which allows file sharing and data transfer between computers connected to the internet. The publishers had applied for an order for disclosure of the identification data about the person who was using the IP address from which was assumed that the files were sent. The service provider Perfect Communications Sweden AB ("ePhone") challenged this application, arguing in particular that the injunction sought is contrary to Directive 2006/24. Eventually the applicants appealed to the Supreme Court (högsta domstolen), which referred to the following questions to the CJEU for a preliminary ruling: 1.      Does Directive 2006/24, and in particular Articles 3 to 5 and 11 thereof, preclude the application of a national provision which is based on Article 8 of Directive 2004/48 and which permits an internet service provider in civil proceedings, in order to identify a particular subscriber, to be ordered to give a copyright holder or its representative information on the subscriber to whom the internet service provider provided a specific IP address, which address, it is claimed, was used in the infringement? The question is based on the assumption that the applicant has adduced clear evidence of the infringement of a particular copyright and that the measure is proportionate. 2.      Is the answer to Question 1 affected by the fact that the Member State has not implemented [Directive 2006/24] despite the fact that the period prescribed for implementation has expired?’ The CJEU first established that the applicants seek the communication of the name and address of an internet subscriber or user using the IP address from which it is presumed that the alleged illegal file exchange took place, in order to identify