Stichting BREIN – Court Ruling (Netherlands, 2022)

Stichting Brein is a foundation involved in collectively counteracting and preventing copyright infringements. Ziggo is one of the largest internet service providers (ISPs) in the Netherlands. In december 2020, Brein started the "FLU-warning campaign". The aim of this campaign was to send warning letters to holders of IP addresses of which Brein, using special software, had found that they had uploaded copyright infringing material via BitTorrent for at least two times in a span of four weeks. Since Brein only had the IP address of these uploaders, and not their name and address details, it needed the cooperation of ISPs to link an IP address to name and address details. Ziggo, however, did not want to cooperate voluntarily. Hence, in this interim relief proceeding, Brein requested the Court to order Ziggo to forward Brein's warning letters to the relevant Ziggo customers. The interim relief judge rejected Brein's request because Ziggo does not (yet) have a permit as listed in Article 33(4)(c) Implementation Act, to process the IP addresses. First, the Court noted that the IP-addresses are personal data for both Ziggo and Brein, referring to CJEU-cases Breyer and Mircom, since Brein has the legal means to force Ziggo to hand over name and address details related to a specific IP-address. Secondly, the Court considered that the IP addresses are personal relating to criminal offences, Article 10 GDPR, because copyright infringement is a criminal offence according to Article 31-33 Dutch Copyright Act. Even though there is barely any prosecution on the basis of these offences, [https://autoriteitpersoonsgegevens.nl/sites/default/files/atoms/files/ontwerpbesluit_dutch_filmworks.pdf the Dutch DPA has previously held] that processing of personal data of persons against whom there is a more or less well-founded suspicion of acts that infringe a copyright, must be regarded as the processing of personal data regarding criminal offences. Third, the Court marginally assessed