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 that person. The CJEU held that such information constitutes the processing of personal data within the meaning of the first paragraph of Article 2 of Directive 2002/58, read in conjunction with Article 2(b) of Directive 95/46. The information therefore was seen to fall within the scope of Directive 2002/58. Because the CJEU held that Directive 2004/48 does not fall within the material scope of 2006/24 the CJEU ruled that Directive 2006/24 does not preclude the application of national legislation based on Article 8 of Directive 2004/48 which, in order to identify an internet subscriber or user, permits an internet service provider in civil proceedings to be ordered to give a copyright holder or its representative information on the subscriber to whom the internet service provider provided an IP address which was allegedly used in an infringement. Therefore, it was irrelevant that the Directive 2006/24 was not yet transposed. The CJEU ruled also that Directives 2002/58 and 2004/48 must be interpreted as not precluding national legislation such as that was at issue where the law permits an internet service provider in civil proceedings to be ordered to give a copyright holder or its representative information on the subscriber to whom the internet service provider provided an IP address, insofar as that legislation enables the national court seised of an application for an order for disclosure of personal data, made by a person who is entitled to act, to weigh the conflicting interests involved, on the basis of the facts of each case and taking due account of the requirements of the principle of proportionality.