Legal starting position
With the Enforcement Directive (Directive 2004/48/EC), the European legislator instructed the member states to provide right holders in intellectual property matters with the possibility of enforcing rights to information in court, if necessary, not only directly against the infringers of property rights, but also against platforms that were used to infringe IP.
Specifically, Art. 8 para. 1 c) and para. 2 a) of the Enforcement Directive stipulates that information on the “name” and “address” of the infringer may be requested from persons who demonstrably provide services on a commercial scale used for infringing activities. The German legislator has implemented this requirement in the various laws on intellectual property (e.g. Section 101 (2) sentence 1 no. 2 German Copyright Act, Section 140b (3) no. 1 German Patent Act, Section 19 (3) no. 1 German Trademark Act, etc.). ).
A typical example of a service in the sense just mentioned is the provision of an Internet platform which end users can use for various purposes, in particular to post their own content on the platform, in particular the video platform “YouTube”.
Often, however, the provider of the platform is not aware of the “name” in the sense of the civil name and the “address” in the sense of the postal address of a user who infringes intellectual property. At best, the posting of content on the platform is only possible via a user account created on the platform, for the creation of which data such as an e-mail address may be provided.
It is therefore questionable whether “name” and “address” within the meaning of Art. 8 (2) a) of the Enforcement Directive and the German transposition laws can also be other data than the civil name and the postal address.
Submission of the BGH
The German Federal Supreme Court (BGH) had to deal with this in the case “YouTube third party information” (order dated February 21, 2019, case no. I ZR 153/17, available at bundesgerichtshof.de). Specifically, the issue was whether the owner of rights to a film work that had been illegally uploaded by a user to his YouTube account can demand that the platform provide him with the user’s e-mail address, telephone number and dynamic IP address (once at the time of upload and once the last known). The BGH discusses various arguments for and against this and refers in particular to the possibility that there could be a claim for further information, in particular the civil name and the postal address, against the providers of the e-mail address and the telephone number.
However, it finally acknowledges that the answer to this question ultimately depends on the interpretation of Article 8(2)(a) of the Enforcement Directive and therefore submits it to the ECJ.
Decision of the ECJ
In its decision, the ECJ (judgement of 7 July 2020, Case C-264/19, ECLI:EU:C:2020:542, available at curia.europa.eu) also weighs up various arguments, but finally comes to the conclusion that “name” and “address” are in fact to be understood only as civil name and postal address. At the same time, however, and with reference to the merely minimum harmonising character of the Enforcement Directive and its Art. 8 para. 3 a), it leaves it up to the member states to grant rights holders further rights to information, as long as the various relevant fundamental rights and the principle of proportionality are sufficiently taken into account.
How will the BGH decide?
From a purely legal-doctrinal point of view, there are good arguments for and against the extension of the information rights envisaged by the BGH. For a forecast of how the BGH will actually decide, it is therefore worth taking a look into the past: in an earlier decision, the BGH had already interpreted “name” and “address” broadly and subsequently also included the so-called user ID, which is relevant for the provision of information by Internet access providers in reseller constellations (decision of July 13, 2017, Case No. I ZR 193/16).
However, a differentiation is also conceivable to the effect that dynamic IP addresses are excluded from the right to information, especially in view of the recent “Bestandsdaten II” decision of the Federal Constitutional Court, in which the latter once again emphasized the special sensitivity of dynamic IP addresses to fundamental rights (decision of 27 May 2020, case no. 1 BvR 1873/13 and 1 BvR 2618/13, available at bundesverfassungsgericht.de).
The decision of the Federal Court of Justice will also be followed by the question as to what the rights holder can do with the information, i.e. in particular whether it can subsequently request further information from the providers of the e-mail address and the telephone number as well as from the Internet access provider. Here, too, numerous legal questions remain open.
It is difficult to gatherpersonal data of an infringer on the Internet. At the same time, his civil name and postal address are required for the judicial enforcement of rights. Which service providers have to provide which information is still unclear in many aspects. The decision of the BGH will probably clarify at least some of these.