Guidance on IPRED – striking a fair balance between the applicable fundamental rights in the case of the right of information

Article 8 obliges Member States to enable the competent judicial authorities to order that the infringer or certain other persons provide precise information on the origin of the infringing goods or services, the distribution channels and the identity of any third parties involved in the infringement. Any order by the competent judicial authorities to provide information issued under Article 8 should only concern information which is actually needed to identify the source and scope of the infringement.

The CJEU has clarified that EU law, in particular Article 8(3) of IPRED read in conjunction with Article 15(1) of the E-Privacy Directive, does not preclude Member States from imposing an obligation to disclose to certain private third parties personal data relating to internet traffic in order to enable such third parties to bring civil proceedings for copyright infringements. However, it was also found (de) that the rules of EU law at issue in that case do not require Member States to impose such an obligation either.

The CJEU has also indicated that those rules do not preclude the application of national legislation based on Article 8 of IPRED which, in order to identify an internet subscriber or user, permits an internet service provider in civil proceedings 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. Such national legislation, however, should enable the national court seized 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.

In another case, the CJEU clarified that Article 8(3)(e) of IPRED precludes provisions of national law allowing, in an unlimited and unconditional manner, a banking institution to invoke banking secrecy to refuse to provide, pursuant to Article 8(1)(c) of IPRED, information on the name and address of an account holder. Such unlimited and unconditional authorisation to invoke banking secrecy can seriously impair the effective exercise of the fundamental right to intellectual property to the benefit of the right of persons covered by Article 8(1) of IPRED to the protection of personal data concerning them.

Under Article 8 of IPRED, the competent judicial authorities can require an infringer or certain other persons to provide information on the origin and the distribution networks of the goods or services which infringe an IPR. This information can include personal data, where such disclosure occurs in compliance with the applicable legislation on the protection of personal data and provided safeguards exist to ensure a fair balance between the various fundamental rights at issue.