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EU backs ISPs over file-sharing

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Sharing

David Meyer ZDNet.co.uk

Published: 30 Jan 2008 14:55 GMT

The highest court in the EU ruled on Tuesday that, in civil cases, internet service providers should not have to disclose the names of those sharing files over their networks.

The European Court of Justice (ECJ) ruling, which relates to a battle between the Spanish internet service provider (ISP) Telefonica and the Spanish music rights organisation Promusicae, is a blow to a content industry that has long depicted file-sharing as destroying the creative and software industries.

Promusicae had made an application to the Spanish courts in the hope that they would force Telefonica to reveal the identities and physical addresses of those users Promusicae believed were sharing content over peer-to-peer file-sharing networks such as Kazaa. However, the organisation wanted this information with a view to launching civil proceedings against the alleged file-sharers and Telefonica argued that it should only have to reveal the information in a criminal case.

The Spanish courts then went to the ECJ to ask whether EU law requires member states to oblige ISPs to divulge such information in civil cases.

In a statement released on Tuesday, the ECJ pointed out that a balance needed to be struck between the right to the "effective protection of industrial property, in particular copyright", and the right to the "protection of personal data".

"The ECJ notes that the exceptions permitted by the directives on the protection of personal data include the measures necessary for the protection of the rights and freedoms of others," read the statement. "As the directive on privacy and electronic communications does not specify the rights and freedoms concerned by that exception, it must be interpreted as expressing the European Community legislature's intention not to exclude from its scope the protection of the right to property or situations in which authors seek to obtain that protection in civil proceedings."

"It does not, therefore, preclude the possibility for the member states of laying down an obligation to disclose personal data in the context of civil proceedings. However, it does not compel the member states to lay down such an obligation," the statement continued.

In its statement, the ECJ also called on EU states to respect the "principle of proportionality" when deciding how to handle such cases. The UK government has recently hinted at a crackdown on file-sharing — an issue that remains a civil, rather than criminal, matter here, as elsewhere. The intellectual property minister, Lord Triesman, has repeatedly demanded that ISPs turn over personal data on alleged file-sharers in such cases.

Speaking to ZDNet.co.uk, a spokesperson for the UK's Internet Service Providers' Association (ISPA) said the ECJ ruling showed that governments should not weigh into the file-sharing issue.

"I think it's a case of working out the difference between criminal and civil law," said an ISPA spokesperson on Wednesday. "It does demonstrate the appropriateness of self-regulation, rather than legislation, in these kinds of areas. We will wait and see what happens."

Promusicae is not alone in trying to force ISPs to take more responsibility for file-sharing. This week, rock group U2's manager Paul McGuinness told a music industry convention in Cannes that ISPs are making money from file-sharers and the UK government should take action.

"In the UK, the Gowers Report made it clear that legislation should be considered if voluntary talks with ISPs failed to produce a commitment to disconnect file-sharers. I'd like to see the UK government act promptly on this recommendation," McGuinness said.