Sunday, 12 July 2020

CJEU follows AG and rules that notion of 'address' does not extend to email and IP addresses and telephone numbers

The IPKat has an email address, 
but not a postal one
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Does the notion of ‘address’ only refer to one’s own postal address or does it also encompass one’s own email and IP address, as well as telephone number?

This, in a nutshell, is the question which the Court of Justice of the European Union (CJEU) had been required to answer in Constantin Film v YouTube, C-264/19.

The referral, which Germany’s Federal Court of Justice had made, focused on the interpretation of Article 8(2)(a) of the Enforcement Directive, a piece of EU legislation adopted in 2004.

The background national proceedings had originated from the refusal, by YouTube and its parent company Google, to provide film producer Constantin Film with the email and IP addresses, as well as telephone numbers, of YouTube users who had uploaded on that platform unlawful copies of its films Parker and Scary Movie 5.

A few months ago - as The IPKat reported - Advocate General (AG) Saugmandsgaard Øe advised the CJEU to rule that the notion of ‘address’ is limited to one’s own postal address, but that individual Member States could go beyond the Enforcement Directive (this is only aimed at providing a minimum harmonization between Member States’ law) and provide for more extensive obligations on infringers or other subjects, including online intermediaries and platforms.

Earlier this week, the CJEU issued its ruling, substantially agreeing with AG Saugmandsgaard Øe.

Let’s see more in detail how the Court reasoned.

The notion of 'address'

First, the Court reiterated the AG’s point regarding the lack of reference, in Article 8(2)(a), to the law of individual Member States. Thus means that the concept of ‘address’ in that provision is an autonomous concept of EU, which must be given an independent and uniform interpretation throughout the EU.

Secondly, also like the AG, the CJEU indicated the need to interpret the notion of ‘address’ “in accordance with its usual meaning in everyday language, while also taking into account the context in which it occurs and the purposes of the rules of which it is part and, where appropriate, its origins” [para 29]

From this it would follow - as also the AG opined and as seemingly supported by both the travaux to the Enforcement Directive and the context in which the term is used - that the notion of ‘address’ in everyday language would be limited to one’s own postal address, that is “the place of a given person’s permanent address or habitual residence” [para 30]

This conclusion would be also consistent with the purpose of Article 8 and the overall objective of the Enforcement Directive. Whilst it is true that, by adopting this piece of legislation, the EU legislature sought “to apply and implement the fundamental right to an effective remedy guaranteed in Article 47 of the Charter of Fundamental Rights, and thereby to ensure the effective exercise of the fundamental right to property, which includes the intellectual property right protected in Article 17(2) of the Charter” [para 35], the harmonization of enforcement measures pursued therein is limited to narrowly defined information in Article 8(2).

In all this, the directive seeks to establish a ‘far balance’ between IP protection on the one hand, and the interests and fundamental rights of users and the public interest on the other hand. In the specific case of Article 8, the fair balance is between copyright protection and the right to protection of personal data, which is safeguarded under Article 8 of the Charter.

Training for some robust enforcement initiatives
Comment

As mentioned, the CJEU decision is in line with the Opinion of AG Saugmandsgaard Øe, yet manages to go beyond it. 

Not only does the judgment refuse to include email and IP addresses, as well as telephone numbers, in the notion of ‘address’, but also adopts a rather narrow definition of address. 

An ‘address’ is in fact only "the place of a given person’s permanent address or habitual residence".

However, as discussed in The IPKat's earlier post on the AG Opinion, the one provided by the AG and the Court is not really what the everyday language understanding of ‘address’ appears to entail.

If we look at the definition provided by the Cambridge Dictionary, the notion of address is not limited to one's own:
  • physical address, as the notion may also refer to “a series of letters and symbols that tell you where to find something on the internet or show where an email is sent to” or “the place where a piece of information is stored in a computer's memory”;
  • place of permanent address or habitual residence, but does rather encompass "the number of the house, name of the road, and name of the town where a person lives or works, and where letters can be sent".
With regard to the notion of address as a physical place, the definition found on the Oxford Learners’ Dictionaries is that of “details of where somebody lives or works and where letters, etc. can be sent”. The same source also confirms that an address may be “a series of words and symbols that tells you where you can find something using a computer or phone, for example on the internet”.

In sum, the considerations undertaken by the AG and the Court are not convincing this time.

It is true that individual Member States can provide greater protection to rightholders if so they want. However, how’s that of any consolation when, as the Court writes, what EU law mandates – besides the infringer’s name – is the disclosure of details, which are of no real use to rightholders when enforcing their rights, because uploaders-infringers do not need to provide them to platforms in the first place?
The referring court notes, in that regard, that, in order to upload videos onto the YouTube platform, users must first of all register with Google by means of a user account, the opening of that account requiring only that those users provide a name, email address and date of birth. Those data are not usually verified and the user’s postal address is not requested. However, in order to be able to post onto the YouTube platform videos lasting more than 15 minutes, the user must provide a mobile telephone number to enable him or her to receive an activation code, which is necessary in order to post. Furthermore, according to YouTube and Google’s joint terms of service and privacy policies, users of the YouTube platform consent to server logs, including the IP address, date and time of use as well as individual requests, being stored and to those data being used by participating undertakings.” [at [16]; emphasis added]
There is no need to embark on a ‘dynamic’ interpretation of the law (as the AG pointed out at [45] of his Opinion) to reach the simple conclusion that the everyday language meaning of ‘address’ is not the one eventually adopted. Nor is the definition adopted by the Court one that allows to conclude that the 'fair balance' objective of Article 8 of the Enforcement Directive has been also fulfilled.

[Originally published on The IPKat on 12 July 2020]

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