CJEU: ISPs need not store temporary IP addresses for copyright civil litigation
Original title: LSG-GESELLSCHAFT ZUR WAHRNEHMUNG VON LEISTUNGSSCHUTZRECHTEN GMBH V. TELE2 TELECOMMUNICATION GMBH, 19.Feb.2009 (“Tele2”)
Judgment
Balancing rights: The judgment relies heavily on the Promusicae judgment to hold that: (1) Access providers which merely provide users with Internet access, without offering other services or exercising any control over the services provided to users, must be regarded as intermediaries under Article 8(3) of Directive 2001/29; (2) under the principle of proportionality, ISPs’ duty of disclosure gives way to users’ privacy rights in this case, where temporary IP addresses must not be stored for th
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## Court Summary Balancing of fundamental rights: Data protection and freedom of expression must be balanced against each other, and data protection law provides in itself multiple mechanisms allowing a balancing of the different fundamental rights to be carried out. Therefore it is not a disproportionate violation of the principle of freedom of expression. (¶¶ 82–87 and ¶ 90) ## Excerpt 82 The mechanisms allowing those different rights and interests to be balanced are contained, first, in Directive 95/46 itself, in that it provides for rules which determine in what circumstances and to what extent the processing of personal data is lawful and what safeguards must be provided for. Second, they result from the adoption, by the Member States, of national provisions implementing that directive and their application by the national authorities. 83 As regards Directive 95/46 itself, its provisions are necessarily relatively general since it has to be applied to a large number of very different situations.
Contrary to Mrs Lindqvist's contentions, the directive quite properly includes rules with a degree of flexibility and, in many instances, leaves to the Member States the task of deciding the details or choosing between options. 84 It is true that, in many respects, the Member States have a margin for manoeuvre in implementing Directive 95/46. However, there is nothing to suggest that the regime it provides for lacks predictability or that its provisions are, as such, contrary to the general principles of Community law and, in particular, to the fundamental rights protected by the Community legal order. 85 Thus, it is, rather, at the stage of the application at national level of the legislation implementing Directive 95/46 in individual cases that a balance must be found between the rights and interests involved. 86 In that context, fundamental rights have a particular importance, as demonstrated by the case in the main proceedings, in which, in essence, Mrs Lindqvist's freedom of expression in her work preparing people for Communion and her freedom to carry out activities contributing to religious life have to be weighed against the protection of the private life of the individuals about whom Mrs Lindqvist has placed data on her internet site. 87 Consequently, it is for the authorities and courts of the Member States not only to interpret their national law in a manner consistent with Directive 95/46 but also to make sure they do not rely on an interpretation of it which would be in conflict with the fundamental rights protected by the Community legal order or with the other general principles of Community law, such as inter alia the principle of proportionality. 90 The answer to the sixth question must therefore be that the provisions of Directive 95/46 do not, in themselves, bring about a restriction which conflicts with the general principles of freedom of expression or other freedoms and rights, which are applicable within the European Union and are enshrined inter alia in Article 10 of the ECHR. It is for the national authorities and courts responsible for applying the national legislation implementing Directive 95/46 to ensure a fair balance between the rights and interests in question, including the fundamental rights protected by the Community legal order.