[ALAC] [Balancing Rights - European Court of Justice] #Intellectual Property #ISP #privacy

Salanieta T. Tamanikaiwaimaro salanieta.tamanikaiwaimaro at gmail.com
Fri Nov 25 01:45:07 UTC 2011

 Interestingly, the European Court of Justice ruled today, in a unrelated
case, that
> privacy is a fundamental right that cannot be superseded by other
interests, and
> certainly not in a disproportionate manner.

As you say, unrelated.  But nice, very nice.



James S. Tyre
Law Offices of James S. Tyre
10736 Jefferson Blvd., #512
Culver City, CA 90230-4969
jstyre at jstyre.com
Policy Fellow, Electronic Frontier Foundation

The significance of this Judgment is in relation to how they dealt with the
prioritisation of rights, that is the rights if intellectual property
owners, the rights of ISPs to conduct their business freely and the rights
of consumers to privacy. "The injunction requiring installation of the
contested filtering system involve a systematic analysis of all content [ISPs
cannot afford this and at the end of the day, this cost would be borne by
customers somehow] and the collection and identification of users' IP
addresses from which unlawful content on the network is sent. Those
addresses are protected personal data because they allow those users to be
precisely identified". (Highlighted portion is mine)

The consideration in how the Judges arrived at their decision is on [para
52, 53] where there is no guarantee that lawful content would not be
blocked. After considering all the rights stemming from the Directives
listed in para 55, the courts held in favour of "privacy" of consumers that
is fundamental rights trumping when reading all of the Directives together.
Although the European Court of Justice recommended that harmonization take

Some may recall a thread initiated by Carlton attaching Geist's article. I
apologise for repeating previous posts but am doing so in case there are
those that did not read the other threads.

 Most of us are aware of the controversial bill that was debated in US
Congress called the Stop Online Piracy Act (SOPA) which has had a few
multinationals raising a ruckus for obvious reasons. The Bill is accessible

Whilst some of you may wonder what that has to do with us who do not live
in the United States of America, that Bill will force the taking down of
websites if there are infringements to intellectual property rights. Well
before the SOPA, the US Government took down a Spanish Website called
Rojadirecta even though the Spanish government and people protested and
their Petition: See:

You can see the extra-territorial jurisdictional implications through that
example. You can also read a lighter version here:
(I apologise that this is a secondary source)

There is also an interesting perspective by Geist via
am re-attaching this link that was initially sent by Carlton)

As pointed out by James S Tyre during the discussions on the other thread,
the European Court of Justice handed down a decision.  I found this
Judgment interesting in the wake of the controversies surrounding SOPA. To
see impact of SOPA, read the Summary, Problems and Implications of the SOPA
visit http://www.cdt.org/files/pdfs/SOPA%202-pager%20final.pdf<https://www.tflwebmail.com.fj/owa/redir.aspx?C=ea557e11430047ab9ac9834c05d4a48a&URL=http%3a%2f%2fwww.cdt.org%2ffiles%2fpdfs%2fSOPA%25202-pager%2520final.pdf>

There are some interesting developments by the European Court of Justice on
the prioritisation of rights, where EU law precludes the imposition of an
injunction by a national court which requires an Internet Service Provider
(ISP) to install a filtering system with a view to preventing the illegal
downloading of files, see the Press Release:

The actual Judgment that was just released on the 24th November, 2011 is
available here:

Whilst this is true for ISPs, it also is interesting to see the manner in
which IP addresses is viewed by the European Court of Justice in the
Judgment which makes the Judgments interesting.

Salanieta Tamanikaiwaimaro aka Sala

Tweeter: @SalanietaT
Cell: +679 998 2851

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