Case law: Promusicae

This month E-Crime Expert is presenting relevant Case law and rulings regarding data protection rights, law applicability and enforcement.

The purpose of this new series is to show actually how the relevant law should be applied in order to properly balance the right to free access of public information, free flow of information and the right to Privacy and Personal Data protection.

The series will balance both the applicability of Data Protection law in the private and public sector, focusing mostly on the Directive 95/46/EC (private sector) and Regulation 45/2001/EC (rights to data protection of individuals working with/for EU Institutions and bodies).

C-275/06, Promusicae, 29.1.2008

MS need to balance various fundamental rights when transposing directives: Reference for preliminary ruling. Telefonica had refused to disclose to Promusicae, an NPO, acting on behalf of its members who are holders of intellectual property rights, PD relating to users of the internet who accessed KaZaA file exchange program and shared files of PCs to recordings of Promusicae’s members, by means of connections provided by Telefonica. Promusicae wanted to bring civil actions against those persons. National court referred the question whether Community law permits MSs to limit duty of operators of telecom networks to supply traffic data.

Court held that this question raises the need to reconcile the requirements of protection of different fundamental rights, namely right to respect for private life on the one hand and rights to protection of property and effective remedy on the other hand. Directive 2002/58 provides rules determining in what circumstances and to what extent PD processing is lawful and what safeguards must be provided.

When transposing various intellectual property directives, MS must take care to interpret them such that there is a fair balance struck between the various fundamental rights protected by the Community legal order. Further, when implementing the national law transposing those directives, authorities and courts of the MSs must interpret them in a manner consistent with the directives and make sure that the interpretation does not conflict with those fundamental rights or other general principles of Community law, such as proportionality principle.

Credits and acknowledgment go to Laraine Laudati, OLAF DPO.

Stay tuned for the case law.

Any questions can be submitted to: dan@e-crimeexpert.com

Additional information can be found at: www.e-crimeexppert.com

What do you think about the findings? Do you think that the applicant was right? 

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