IP address – Storage

Internet connection: Provider may store IP address and transmit it to affected third party

17.06.2021 | Transmission of IP data 
(ECJ, Judgment of 17.06.2021 – (C-597/19)

In its judgment of 17.06.2021 (C-597/19 – M.I.C.M.), the ECJ ruled as follows:

The systematic storage of IP addresses of users and the communication of their names and addresses to the intellectual rights holder or to a third party in order to enable the bringing of an action for damages is permissible under certain conditions.
The request for information by an intellectual property right holder must not be abusive and it must be justified and proportionate.

A company brought an application (M) for information before the Court of Antwerpen (Antwerp Enterprise Court, Belgium) against another telecommunication company (T), more precisely an internet access provider. This application is for a decision requiring Telenet to provide the data identifying its customers on the basis of the IP addresses collected by a specialised company on behalf of M. The internet connections of T’s customers were used to share films from M’s repertoire in a peer-to-peer network via the BitTorrent protocol.

T opposes M’s application.

Against that background, the referring court first asked the Court of Justice whether sharing segments of a media file containing a protected work on a peer-to-peer network constitutes communication to the public under EU law.
Secondly, it wanted to know whether a holder of intellectual property rights such as M, who does not use them but seeks damages from alleged infringers, has the measures, procedures and remedies provided for in Union law open to it to ensure the enforcement of those rights, for example by obtaining information.
Thirdly, the referring court has asked the Court of Justice to clarify whether the way in which M collects customers’ IP addresses and the transmission of the data requested by M from T are permissible.

The ECJ has decided as follows:

In its judgment, the Court holds, first, that an upload of segments of a media file on a peer-to-peer network such as the one at issue constitutes making available to the public within the meaning of EU law.
Secondly, an IPR holder such as M may use the system to protect those rights, but its request for information must in particular be non-abusive, justified and proportionate.
Third, the systematic storage of IP addresses of users of a peer-to-peer network and the communication of their names and addresses to the rightholder or to a third party in order to enable an action for damages to be brought is permissible under certain conditions.

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