“Who do you want to speak to? No, you can’t have their number…” – IP Enforcement Directive does not require disclosure of email addresses, telephone numbers or IP addresses

 AG Øe recently provided his Opinion in Constantin Film Verleih GmbH v YouTube LLC, Google Inc. (C-264/19), advising the CJEU to rule that ‘names and addresses’ in Article 8(2)(a) of the IP Enforcement Directive does not include email addresses, telephone numbers or IP addresses of service users who have uploaded copyright-infringing files.

The proceedings concern a dispute between German film distributor Constantin Film and YouTube (and its parent Google), in respect of users who uploaded two full-length films (Parker and Scary Movie 5) to YouTube contrary to Constantin Film’s exclusive rights. YouTube/Google had refused to provide Constantin Film with user: 

(1) email addresses, telephone numbers or IP addresses used to upload files; and

(2) IP addresses used to access Google/YouTube accounts. 

The question for the CJEU, following referral by the German Supreme Court, is whether email addresses, telephone numbers and IP addresses are considered ‘names and addresses’ for the purposes of Article 8(2)(a) of the IP Enforcement Directive, such that competent judicial authorities may order the disclosure of these details as ‘names and addresses’ in respect of users who may have infringed intellectual property rights.

As a starting point, AG Øe reasons that the usual meaning of ‘names and addresses’ in everyday language must be applied in Article 8(2)(a) of the IP Enforcement Directive because:

(1) there is no reference to the law of Member States, so the concept of ‘names and addresses’ is a notion of EU law which must be given an "autonomous and uniform interpretation"; and

(2) the words ‘names and addresses’ are not defined, and therefore must be given their everyday meaning in the context of the legislation.

It follows that the everyday meaning of ‘address’  is just a postal address, especially in a ‘general’ context (e.g. outside the context of the internet). Further, AG Øe notes that where the EU legislature has intended to refer to email or IP addresses it has done so expressly by qualifying the word ‘address'. Indeed, the preparatory materials of the IP Enforcement Directive contain nothing to suggest that ‘address’ should be interpreted as anything other than a postal address. AG Øe rejects Constantin Film’s argument that Article 8(2) of the IP Enforcement Directive should be interpreted as referring to "any information that makes it possible to identify" relevant persons, as effectively rewriting the legislation. There was no ambiguity in the scope of ‘names and addresses’ to support such a "dynamic or teleological interpretation". 

The case is important because it involves balancing Article 17(2) (protection of intellectual property) and Article 8 (protection of personal data) of the Charter of Fundamental Rights of the European Union. In this instance, AG Øe tilted the balance in favour of preserving rights in respect of personal data. However, AG Øe went on to highlight that Article 8(3)(a) of the IP Enforcement Directive allows for Member States to 'grant the rightholder rights to receive fuller information’, expressly providing for the possibility of including other methods of communication and this may be considered further by Member States should the CJEU follow AG Øe’s advice.

AG Øe’s Opinion also calls into question the everyday meaning of the word ‘address’. Should it be limited to physical addresses? Or in the modern digital world should it now encompass email and IP addresses as well?