Data retention – a critical side note by Advocate-General Kokott

On 18 July 2007 Advocate-General Juliane Kokott of the European Court of Justice has issued her opinion in case C-275/06.

Case C-275/06 (Promusicae/Telefonica de Espana) deals with the question whether internet access providers (here: Telefonica) are under an obligation to reveal personal data on their users to a private party (Promusicae) in order to enable the latter to bring civil law charges against these users for the infringement of intellectual property rights (here: filesharing of audiovisual files). Under Spanish law internet access providers are merely obliged to reveal the requested data to state authorities for the purpose of criminal law. The Spanish court wanted to know whether this restriction is in conformity with EU law. Advocate-General Kokott opines that it is in conformity with EU law that member states exclude the disclosure of personal data for the purpose of facilitating the prosecution of infringements of intellectual property law.

Although the validity of the EU data retention directive has not been at stake in this proceeding, the Advocate-General made a remark that shows some constraints towards the legality of this directive. In para. 82 of her opinion, Kokott – under reference to an opinion of the European Data Protection Supervisor and the Rasterfahndung decision of the German Federal Constitutional Court of April 2006 - states:

«There is reason to doubt, whether the storing of personal data of all users – quasi on stock – is compatible with fundamental rights, in particular as this is done without any concrete suspicion.»

The Court will deliver its judgment within the next months. The Advocate General’s opinion does not bind the Court.

Schlussanträge der Generalanwältin Juliane Kokott vom 18.7.2007, Rechtssache C-275/06, Productore de Musica de Espana gegen Telefonica de Espana SAU

(the opinion is currently only available in Spanish, German, French, Italian, Danish, Estonian, Portuguese, Slovene, Finnish, Swedish)

Data retention – a critical side note by Advocate-General Kokott (german)