The right of information: An illustration of the conflict between data protection and IP enforcement

BMM Bulletin 2013, p. 11-17, Virginie Fossoul: “[...]A conflict between data protection rules and intellectual property rights enforcement is likely to happen when personal data are collected and processed in order to enforce intellectual property rights. Several provisions of the IP Enforcement Directive foresee the processing of data, whether they be personal or not. However, one provision has come to the forefront of the conflict between data protection and intellectual property rights enforcement: the right of information. As counterfeiting becomes more and more organised and international, the need has arisen to gather information on the increasingly international and well-organised counterfeiting networks if they are to be stopped.

[...]Secondly, the right of information has been at the centre of several cases recently heard by the Court of Justice. In the Promusicae case, the right of information was invoked by the intellectual property right-holder against Telenet, an internet services provider (“ISP”), to force Telenet to disclose personal data relating to IP addresses. A similar request was made in the LSG case. In both cases, the ISPs refused to comply, citing data protection rules. The Court of Justice limited itself to observing that data protection rules did not prevent the Member States from laying down an obligation to disclose personal data, nor did it compel them to adopt such obligations. In the more recent Bonnier case, the right of information was also invoked by a right-holder to force an ISP to disclose the names and addresses linked to IP addresses used in the illegal distribution of eBooks. The ISP also challenged the request, claiming that it was contrary to data protection rules (more particularly, Directive 2006/24). Even though these cases addressed copyright issues, they are all important for intellectual property rights, since they provide guidance on the right of information and its conditions, which are part of the balance to be struck between intellectual property rights and data protection.

[...] The right of information provides a good illustration of how proportionality can be achieved, taking into consideration a wide range of criteria. However, the debate on the right of information is not over yet, notably in view of the Commission’s wish to enact a special right of information for the fight against online counterfeiting. Thus, the future of the right of information and, more generally, of the conflict between intellectual property rights and data protection is still to be written. Since European data protection rules as well as the IP Enforcement Directive are both undergoing modernisation processes, it is doubtless a good time to reflect on the conflict between these rules."