[pp.int.general] Promusicae vs Telefonica: privacy is not compromised, but neither secured

[Carlos Ayala]

Hello:

Rick told me on last saturday that the EU Justice Court was about to release a judgment on a privacy vs IP Spanish case. In that case, Promusicae -an Spanish Rights Management Organisation (from here, RMO)- requested Telefonica -an ISP- through Spanish civil courts of justice to provide personal data from their customers in order to allow Promusicae to investigate whether Spanish IP Law had been violated. Here is the judgment's full version in English.

In the judgment, EU Justice Court states that despite european directives on personal data protection, IP and others do not forbid State members to force ISPs to provide RMOs with their customer's personal data, neither force State members to force ISPs; then, if Spanish Information Society and Personal Data laws don't force ISPs to provide RMOs with their customer's personal data, it won't happen ... yet. But, what about the future? The EUJC judgment states:

"the answer to the national court’s question must be that Directives
2000/31, 2001/29, 2004/48 and 2002/58 do not require the Member States
to lay down, in a situation such as that in the main proceedings, an
obligation to communicate personal data in order to ensure effective
protection of copyright in the context of civil proceedings. However,
Community law requires that, when transposing those directives, the
Member States take care to rely on an interpretation of them which
allows a fair balance to be struck between the various fundamental
rights protected by the Community legal order. Further, when
implementing the measures transposing those directives, the authorities
and courts of the Member States must not only interpret their national
law in a manner consistent with those directives but also make sure
that they do not rely on an interpretation of them which would be in
conflict with those fundamental rights or with the other general
principles of Community law, such as the principle of proportionality"

So though privacy is not compromised in Spain -yet-, it's neither secured, as it will depend on each Member state -Spain, Sweden, Poland, Germany, France, Netherlands, Denmark, Austria, etc- MPs' mood -i.e. ability to stand against RMOs pressure- and, finally, each Member state's Constitution. We should go and check our national constitutions to be sure that they don't allow privacy to be eroded in the name of IP, otherwise sooner or later our national MPs -Piratpartiet will try to attack privacy for the good of RMOs and entertainment industry; here in Spain we'll try to rely on the 18th article of Spanish Constitution -and also on Constitutional Court's case law- to be sure that we remain protected against this kind of attacks against privacy ...

... though Spanish Constitution also theoretically protects freedom of speech, and look what our MPs have done to erode it through LISI law. Regards


                                                                                 Carlos Ayala
                                                                                  (Aiarakoa)

                                                         Partido Pirata National Board's Chairman




       
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