Ireland IP & Technology Law Blog : Dublin Lawyers & Attorneys for Intellectual Property, Communications & Information Technology Law in Ireland, U.S. & England

The High Court is to make a preliminary reference to the Court of Justice of the European Union on the extent to which national legislation intended to implement an EU Directive, must itself also comply with the European Charter of Fundamental Rights in order to be fully compatible with EU law, a matter with the potential to be of significant impact throughout the EU.

The High Court has asked the CJEU whether EU Directive 2006/24/EC, which requires member states to retain details in relation to mobile, internet and email data, respects the right to privacy of the user.

The questions arise in the context of a case taken by Digital Rights Ireland against the Minister for Communications, Marine and Natural Resources and others, regarding the extent to which the State can require telecommunications providers to retain and to provide to the State, data on how customers use its services.

The Directive was transposed in Ireland last year by the Communications (Retention of Data) Act 2011. The Act does not require data concerning the content of calls or emails to be retained, however the identity of the person sending and receiving the communication must be retained in addition to information as to the time the communication was sent, and in the case of mobile phones, the location of the phones. The Act requires telecommunication providers to retain telephone data for 2 years and internet data is to be retained for 12 months, in order to ensure that the data is available for the purpose of the investigation, detection and prosecution of serious crime.

See here for a previous discussion of the Act.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Minister for Jobs, Enterprise and Innovation has this afternoon published controversial draft Regulations to address the perceived lacuna in Irish Copyright law, originally flagged by Mr. Justice Charlton in the case of EMI v UPC (also see Davinia Brennan's blog below for another take on this!). The draft Regulations provide for that copyright owners may seek injunctions against intermediaries (which would include internet service providers). Subsection 5A(a) to be inserted at Section 40 of the Copyright and Related Rights Act 2000, would provide as follows:

The owner of the copyright in a work may, in respect of that work, apply to the High Court for an injunction against an intermediary to whom paragraph 3 of Article 8 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001[1] on the harmonisation of certain aspects of copyright and related rights in the information society applies

The draft legislation is unspecific as regards the precise nature or scope of injunction which a court might be entitled to grant as against an intermediary service provider. However, as I have previously blogged, the European Court of Justice has already stated that injunctions of the sort which oblige service providers to filter and block internet sites which are permitting unlawful downloads may not be permissible under European law.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Minister Sherlock has, today, published the draft European Union (Copyright and Related Rights) Regulations 2012, which are expected to be signed imminently. Minister Sherlock has strenuously denied claims that the proposed legislation mirrors the Stop Online Piracy Act (SOPA) in the United States, stating that such claims “are not based on fact”.

The draft Regulations are, in fact, brief and to the point. They amend the Copyright and Related Rights Act 2000 (the 2000) Act), by explicitly providing for the right of a copyright owner to apply to the High Court for an injunction against an intermediary whose services are used by a third party to infringe their copyright or related right. 

This right is already available in all other Member States of the EU, as two EU directives (the Copyright Directive 2001/29/EC and the Enforcement Directive 2000/31/EC) specifically require that copyright holders are in a position to apply for such injunctions.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The European Commission has published its proposals to reform the EU's Data Protection Directive (95/46/EC).

The proposed Regulation, unlike the 1995 Data Protection Directive, which gives Member States a wide discretion in respect of its implementation, will be directly applicable once implemented. The Vice President of the European Commission, Viviane Reding, has said that the implementation of a single set of rules on data protection, valid across the EU, law will do away with the current fragmentation and costly administrative burdens. 

Under the new proposals, multinational companies will be regulated in a ‘one-stop shop’. Companies will only have to deal with a single national data protection authority in the EU country where they have their main establishment. At the moment, businesses are supervised by a different authority in each Member State in which they carry out data processing activities.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As we reported recently, the CJEU held in Scarlet Extended SA (“Scarlet”) v Societe belge des auteurs, compositeurs et editeurs (“SABAM”), Case C-70/10 that an order requiring a Belgian internet service provider to filter certain peer to peer files is not permissible under EU law. The CJEU found that any national measures to protect copyright must “strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures”.

This case is also noteworthy for its landmark decision that internet protocol addresses constitute “protected personal data”.  The CJEU held that the injunction sought, requiring installation of the contested filtering system, “would involve a systematic analysis of all content 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.”
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link