ECJ: “Address” is not e-mail address or IP address

In the case of illegal uploading of a film to YouTube, under the IPR Enforcement Directive, the rights holder can only demand the postal address of the user in question from the operator, not their email address, IP address or telephone number. This was decided by the ECJ last week.

Directive 2004/481 requires courts to disclose the e-mail address, IP address or telephone number of the user who uploaded the film at issue. The directive, which provides for disclosure of the “addresses” of persons who have infringed an intellectual property right, refers only to the mailing address.

In 2013 and 2014, the films Parker and Scary Movie 5 were uploaded to YouTube without the consent of Constantin Film Verleih, the holder of the exclusive rights of use to these works in Germany. There they were viewed tens of thousands of times. Constantin Film Verleih therefore demanded that YouTube provide it with a series of disclosures about each of the users who had uploaded the films. YouTube refused to provide Constantin Film Verleih with information about these users, in particular their e-mail addresses and telephone numbers as well as the IP addresses used by them both at the time of the upload of the files in question and at the time of the last access to their Google/YouTube account.

The dispute in the main proceedings depended on the answer to the question whether such information falls within the concept of “addresses” within the meaning of Directive 2004/48. Under that directive, courts may order that information be provided on the origin and distribution channels of goods or services infringing an intellectual property right. This information includes, among other things, the “addresses” of the manufacturers, distributors and suppliers of the infringing goods or services.

First, the ECJ held that the ordinary meaning of the term “address” covers only the postal address, i.e., the domicile or residence of a particular person. It follows that this term, when used as in Directive 2004/48 without further specification, does not refer to the e-mail address, telephone number or IP address.

Second, the preparatory work for the adoption of Directive 2004/48 did not provide any evidence to suggest that the term ‘address’ should be understood as covering not only the postal address but also the e-mail address, telephone number or IP address of the data subjects.

Third, the applicant submits that an examination of other EU legal instruments relating to e-mail addresses or IP addresses reveals that none of those instruments uses the term ‘address’ – without further specification – to designate a telephone number, an IP address or an e-mail address.

This interpretation is, according to the Court, consistent with the objective pursued by the provision of Directive 2004/48 concerning the right of access. Indeed, in view of the minimum harmonization with respect to the enforcement of intellectual property rights in general, such harmonization under this provision is limited to clearly circumscribed information. In addition, this provision aims to reconcile the respect of various rights, including the right of access of right holders and the right of users to protection of their personal data.

In those circumstances, the Court concluded that, as regards a user who has uploaded files infringing an intellectual property right, the term ‘addresses’ in Directive 2004/48 does not refer to that user’s e-mail address and telephone number or to the IP address used for the uploading of those files or to the IP address used when the user last accessed the user’s account.

However, the Court of Justice has clarified that Member States have the possibility to grant IPR holders a more extensive right of access, subject, however, to ensuring a proper balance between the different fundamental rights concerned and to respecting the other general principles of Union

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.