Case C-557/07

LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten GmbH

v

Tele2 Telecommunication GmbH

(Reference for a preliminary ruling from the Oberster Gerichtshof)

‛Article 104(3) of the Rules of Procedure — Information society — Copyright and related rights — Saving and disclosure of certain traffic data — Protecting the confidentiality of electronic communications — ‘Intermediaries’ within the meaning of Article 8(3) of Directive 2001/29/EC’

Order of the Court (Eighth Chamber), 19 February 2009   I ‐ 1230

Summary of the Order

1. Approximation of laws — Harmonisation of certain aspects of copyright and related rights in the information society — Directive 2001/29 — Electronic commerce — Directive 2000/31 — Processing of personal data and protection of privacy in the electronic communications sector — Directive 2002/58 — Enforcement of intellectual property rights — Directive 2004/48

   (European Parliament and Council Directives 2000/31, 2001/29, 2002/58, Art. 15(1), and 2004/48, Art. 8(3))

2. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Intermediaries within the meaning of Article 8(3) of Directive 2001/29 — Definition

   (European Parliament and Council Directive 2001/29, Art. 8(3))

1.  Community law — in particular Article 8(3) of Directive 2004/48 on the enforcement of intellectual property rights, read in conjunction with Article 15(1) of Directive 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) — does not preclude Member States from imposing an obligation to disclose to private third parties personal data relating to Internet traffic in order to enable them to bring civil proceedings for copyright infringements.

   Community law nevertheless requires Member States to ensure that, when transposing into national law Directive 2000/31 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society, and Directives 2002/58 and 2004/48, they rely on an interpretation of those directives which allows a fair balance to be struck between the various fundamental rights involved. Moreover, when applying the measures transposing those directives, the authorities and courts of Member States must not only interpret their national law in a manner consistent with those directives but must also make sure that they do not rely on an interpretation of those directives which would conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.

   (see para. 29, operative part 1)

2.  Access providers which merely provide users with Internet access, without offering other services such as email, FTP or file sharing services or exercising any control, whether de iure or de facto, over the services which users make use of, must be regarded as ‘intermediaries’ within the meaning of Article 8(3) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society.

   Under that article, Member States are to ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right. Access providers who merely enable clients to access the Internet, even without offering other services or exercising any control, whether de iure or de facto, over the services which users make use of, provide a service capable of being used by a third party to infringe a copyright or related right, inasmuch as those access providers supply the user with the connection enabling him to infringe such rights.

   Moreover, according to Recital 59 in the preamble to Directive 2001/29, rightholders should have the possibility of applying for an injunction against an intermediary who ‘carries a third party’s infringement of a protected work or other subject-matter in a network’. It is common ground that access providers, in granting access to the Internet, make it possible for such unauthorised material to be transmitted between a subscriber to that service and a third party.

   That interpretation is also borne out by the aim of Directive 2001/29 which, as is apparent in particular from Article 1(1) thereof, seeks to ensure the legal protection of copyright and related rights in the framework of the internal market. The protection sought by Directive 2001/29 would be substantially diminished, in that regard, if ‘intermediaries’, within the meaning of Article 8(3) of that directive, were to be construed as not covering access providers, which alone are in possession of the data making it possible to identify the users who have infringed those rights.

   (see paras 42-46, operative part 2)