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The European Court of Justice (ECJ) has decided on 29 January 2008 in the case of Productores de Música de España Promusicae vs. Telefónica de España considering that the European law "does not require member states to lay down an obligation to disclose personal data in the context of civil proceedings". However, the decision allows the national courts to do that if the national interpretation requires so: "As to those directives, their provisions are relatively general, since they have to be applied to a large number of different situations which may arise in any of the Member States."

The decision came in the case where the Spanish music Association Promusicae asked the ISP Telefonica to hand over the names and addresses of the subscribers that allegedly distributed copyrighted songs via the p2p software Kazaa. Telefonica refused, considering that it could do that only in a criminal investigation or in matters of public security and national defence. The company based its position on the Spanish implementation of the E-commerce directive. A Spanish Court of Madrid asked the ECJto decide on the conformity of the Spanish act to the EU law on this matter.

The Advocate General Juliane Kokott's opinion published on 18 July 2007 was positive for the ISPs, suggesting that the member states exclusion of revealing personal data from Internet traffic in the copyright infringement civil law cases was compatible with the EU law.

However, the ECJ final decision was limited to claiming that the European Directives invoked in this case "do not require the Member States to lay down (...) an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings." This confirms that the EU law does not directly require the national courts to disclose the personal data in civil cases of copyright infringement.

At the same time, the decision considers that it is acceptable for national laws to allow forcing of disclosure in civil proceedings, taking into consideration their balance of fundamental rights : "(...)when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality. "

Intellectual property lawyer Iain Connor, a partner with Pinsent Masons, considered the ruling could be bad news for ISPs in the UK : "You could potentially get people who want to host material effectively forum shopping and going to ISPs in places where disclosure would not be ordered."

Meryem Marzouki, president of the EDRi-member IRIS France, considers the decision as more in favour of the copyright holders demands and insists that the ruling is a step backward if reffered to the Advocate General's opinion in this case that the EU legislation on personal data protection should prevail on the Community law on e-commerce, copyright protection and IP enforcement.

C-275/06 - Promusicae vs Telefonica - ECJ decision (29.01.2008)
http://www.bailii.org/eu/cases/EUECJ/2008/C27506.html

Countries can choose whether or not to force disclosure of file-sharers (29.01.2008)
http://www.out-law.com/page-8836

Court delivers a blow to record companies on internet piracy (30.01.2008)
http://business.timesonline.co.uk/tol/business/law/article3273960.ece

EU supremes: ISPs don't always have to finger filesharers (29.01.2008)
http://www.theregister.co.uk/2008/01/29/eu_supreme_civil_isp_fileshari...

EDRi-gram: ECJ's Advocate General says no handing traffic information in civil cases (1.08.2007)
http://www.edri.org/edrigram/number5.15/traffic-data-civil-cases