LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten GmbH – CJEU Judgment (Austria, 2009)

LSG was a society acting as a trustee to enforce the rights of music producers and artists in respect of the exploitation of their work. After LSG clients suffered financial loss due copyright infringements (in particular the creation of file-sharing systems on which people exchanged copies of saved musics), LSG decided to file civil proceedings. In this context, it requested the Commercial Court of Vienna to order Tele2, an internet access provider who assigned IP addresses to its clients, to provide information about the holders of these IP addresses. The information included names and physical addresses. Tele2 argued that it was not an intermediary under Article 5(1)(a) and 8(3) of Directive 2001/29. The Commercial Court did not follow Tele2’s position. It considered Tele2 as an intermediary and ordered it to provide the requested information. Tele2 therefore filed an appeal with the Oberster Gerichtshof (Supreme Court), stating that as an Internet provider, it didn’t exercise control over the services the users use. The Supreme Court decided to refer two questions to the CJEU in order to obtain clarification regarding the interpretation of Articles 5(1)(a) and 8(3) of Directive 2001/29. (1) “Is the term “intermediary” in Article 5(1)(a) and Article 8(3) of Directive [2001/29] to be interpreted as including an access provider who merely provides a user with access to the network by allocating him a dynamic IP address but does not himself provide him with any services such as email, FTP or file sharing services and does not exercise any control, whether de iure or de facto, over the services which the user makes use of?” (2) “Is Article 8(3) of Directive [2004/48], regard being had to Article 6 and Article 15 of Directive [2002/58], to be interpreted (restrictively) as not permitting the disclosure of personal traffic data to private third parties for the purposes of civil proceedings for alleged infringements of exclusive rights protected by copyright (rights of exploitation and use)?” The Court answered the second question first. Referring to its C-275/06 Promusicae case, the Court pointed out the relative freedom Member States retain to prioritize one fundamental right over another (in this case, right to privacy and to property). They have to ensure an interpretation which allows a fair balance between those rights and must interpret their national law consistently with the directives at stake. Consequently, the Court answered to the second question that directive 2002/58 does not preclude nor obliges the Member States from imposing an obligation to disclose personal data in the context of civil proceedings. Regarding the first question, in short, the qualification of an internet provider as intermediary, the Court considered the following: Internet access providers supplying a connection that enables their users to infringe a copyright or related right are considered as intermediaries within the meaning of Article 8(3) of Directive 2001/29. These access providers are not required to exercise any control over the services their users make use of. The qualification as intermediaries implies that under Article 8(3) of Directive 2001/29, rightholders are in a position to apply for an injunction against them.