Bonnier Audio AB and Others v Perfect Communication Sweden AB.

• Jurisdiction: European Union
• Celex Number: 62010CJ0461
• ECLI: ECLI:EU:C:2012:219
• Date: 19 April 2012
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C‑461/10

JUDGMENT OF THE COURT (Third Chamber)

19 April 2012 (*1 )

‛Copyright and related rights — Processing of data by internet — Infringement of an exclusive right — Audio books made available via an FTP server via internet by an IP address supplied by an internet service provider — Injunction issued against the internet service provider ordering it to provide the name and address of the user of the IP address’

In Case C-461/10,

REFERENCE for a preliminary ruling under Article 267 TFEU from the Högsta domstolen (Sweden), made by decision of 25 August 2010, received at the Court on 20 September 2010, in the proceedings

Bonnier Audio AB,

Earbooks AB,

Norstedts Förlagsgrupp AB,

Piratförlaget AB,

Storyside AB

v

Perfect Communication Sweden AB,

THE COURT (Third Chamber),

composed of K. Lenaerts, President of the Chamber, J. Malenovský, (Rapporteur), R. Silva de Lapuerta, E. Juhász and D. Šváby, Judges,

Advocate General: N. Jääskinen,

Registrar: K. Sztranc-Sławiczek, Administrator,

having regard to the written procedure and further to the hearing on 30 June 2011,

after considering the observations submitted on behalf of:

— Bonnier Audio AB, Earbooks AB, Norstedts Förlagsgrupp AB, Piratförlaget AB and Storyside AB, by P. Danowsky and O. Roos, advokater,

— Perfect Communication Sweden AB, by P. Helle and M. Moström, advokater,

— the Swedish Government, by A. Falk and C. Meyer-Seitz, acting as Agents,

— the Czech Government, by M. Smolek and K. Havlíčková, acting as Agents,

— the Italian Government, by G. Palmieri and C. Colelli, acting as Agents, and by S. Fiorentino, avvocato dello Stato,

— the Latvian Government, by M. Borkoveca and K. Krasovska, acting as Agents,

— the European Commission, by R. Troosters and K. Simonsson, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 17 November 2011,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Articles 3 to 5 and 11 of Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ 2006 L 105, p. 54), and of Article 8 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45, and corrigendum OJ 2004 L 195, p. 16).

2 The reference has been made in proceedings between (i) Bonnier Audio AB, Earbooks AB, Norstedts Förlagsgrupp AB, Piratförlaget AB and Storyside AB (‘the applicants in the main proceedings’) and (ii) Perfect Communications Sweden AB (‘ePhone’) concerning the latter’s opposition to an injunction obtained by the applicants in the main proceedings ordering the disclosure of data.

Legal context

European Union law

Provisions concerning the protection of intellectual property

3 Article 8 of Directive 2004/48 reads as follows: ‘1. Member States shall ensure that, in the context of proceedings concerning an infringement of an intellectual property right and in response to a justified and proportionate request of the claimant, the competent judicial authorities may order that information on the origin and distribution networks of the goods or services which infringe an intellectual property right be provided by the infringer and/or any other person who: (a) was found in possession of the infringing goods on a commercial scale; (b) was found to be using the infringing services on a commercial scale; (c) was found to be providing on a commercial scale services used in infringing activities; or (d) was indicated by the person referred to in point (a), (b) or (c) as being involved in the production, manufacture or distribution of the goods or the provision of the services. 2. The information referred to in paragraph 1 shall, as appropriate, comprise: (a) the names and addresses of the producers, manufacturers, distributors, suppliers and other previous holders of the goods or services, as well as the intended wholesalers and retailers; (b) information on the quantities produced, manufactured, delivered, received or ordered, as well as the price obtained for the goods or services in question. 3. Paragraphs 1 and 2 shall apply without prejudice to other statutory provisions which: (a) grant the rightholder rights to receive fuller information; (b) govern the use in civil or criminal proceedings of the information communicated pursuant to this article; (c) govern responsibility for misuse of the right of information; or (d) afford an opportunity for refusing to provide information which would force the person referred to in paragraph 1 to admit to his/her own participation or that of his/her close relatives in an infringement of an intellectual property right; or (e) govern the protection of confidentiality of information sources or the processing of personal data.’

Provisions concerning the protection of personal data

– Directive 95/46/EC

4 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31) lays down rules relating to the processing of personal data in order to protect the rights of individuals in that respect, while ensuring the free movement of those data in the European Union.

5 Article 2(a) and (b) of Directive 95/46 states: ‘For the purposes of this Directive: (a) “personal data” shall mean any information relating to an identified or identifiable natural person (“data subject”); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity; (b) “processing of personal data” (“processing”) shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.’

6 Article 13 of that directive, entitled ‘Exemptions and restrictions’, provides in paragraph 1: ‘Member States may adopt legislative measures to restrict the scope of the obligations and rights provided for in Articles 6(1), 10, 11(1), 12 and 21 when such a restriction constitutes a necessary measures to safeguard: (a) national security; (b) defence; (c) public security; (d) the prevention, investigation, detection and prosecution of criminal offences, or of breaches of ethics for regulated professions; (e) an important economic or financial interest of a Member State or of the European Union, including monetary, budgetary and taxation matters; (f) a monitoring, inspection or regulatory function connected, even occasionally, with the exercise of official authority in cases referred to in (c), (d) and (e); (g) the protection of the data subject or of the rights and freedoms of others.’

– Directive 2002/58/EC

7 Under Article 2 of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37): ‘Save as otherwise provided, the definitions in Directive 95/46/EC and in Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) [(OJ L 108, p. 33)] shall apply. The following definitions shall also apply: … (b) “traffic data” means any data processed for the purpose of the conveyance of a communication on an electronic communications network or for the billing thereof; … (d) “communication” means any information exchanged or conveyed between a finite number of parties by means of a publicly available electronic communications service. This does not include any information conveyed as part of a broadcasting service to the public over an electronic communications network except to the extent that the information can be related to the identifiable subscriber or user receiving the information; …’

8 Article 5(1) of Directive 2002/58 provides: ‘Member States shall ensure the confidentiality of communications and the related traffic data by means of a public communications network and publicly available electronic communications services, through national legislation. In particular, they shall prohibit listening, tapping, storage or other kinds of interception or surveillance of communications and the related traffic data by persons other than users, without the consent of the users concerned, except when legally authorised to do so in accordance with Article 15(1). This...