Do intermediaries have the obligation to provide the email address of alleged counterfeiters?

What happened?

On 9 July 2020, the CJEU ruled Case-264/19 Constantin Film Verleih GmbH v YouTube LLC and Google Inc.. This case provides an important clarification on the duties of hosting service providers where their users are accused of infringing copyright by uploading protected video materials.

What is the applicable rule at stake?

Under Article 8 of Directive 2004/48/EC  on the enforcement of intellectual property rights, hosting service providers may be obliged, where proportionate and requested by a judicial authority, to disclose the "names and addresses" of the alleged counterfeiter(s), including the listed persons (i.e. the manufacturers, distributors, suppliers and other previous holders of the goods or services, as well as the intended wholesalers and retailers).

What's new?

The dispute in the case at hand focused on the notion of "address" and whether it includes the email address, the telephone number and IP address used to upload content. Indeed, YouTube could not disclose the names and addresses of the user(s) concerned, as such information was not in its possession. The users’ real names and postal addresses are in fact not required by the platform to create an account and upload content online.

The CJEU held that the term "address" must be interpreted as referring only to the postal addresses of the alleged infringer(s). As a result, YouTube was not required to disclose the email addresses, the IP addresses or any telephone numbers of the user(s) concerned.

In more detail

To arrive at that decision, the court gave the following reasoning:

  • The CJEU observed that Directive 2004/48/EC does not define the term “address” and neither does it refer to the laws of Member States to determine its meaning. Therefore, the CJUE considered that it was an autonomous notion under the European Union and that its meaning and scope must be determined in accordance with its usual meaning in the common language, which exclusively covers the postal address;
  • In the absence of a definition within Directive 2004/48/EC, the preparatory work leading to its adoption failed to contain anything to suggest that the notion of "address" should be understood to include anything more than the postal address;
  • Finally, the CJEU examined other EU legal acts referring to email addresses or IP addresses. None of them uses the term "address" without further clarification to designate a telephone number, email or IP address.

In the case at hand, the measures provided under Directive 2004/48/EC were not sufficient to allow the claimant to identify the alleged counterfeiter(s). However, the CJEU restated the ability for Member States to provide in their national law that judicial authorities may order more extensive disclosures of information. In the absence of any extended disclosure requirement under a given national law, copyright holders may only request the names and (postal) addresses as identification information of the persons concerned. In Luxembourg, the same disclosure requirements have been transposed into national laws to reflect the provisions of Directive 2004/48/EC. Accordingly, the disclosure obligations under Luxembourg law are also limited to the names and (postal) addresses of the concerned persons.

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