A-G CJEU: e-mail addresses, telephone numbers and IP addresses are not covered by the concept of “names and addresses” as set out in article 8(2)(a) of the Enforcement Directive

Case C-264/19: Constantin Film Verleih v Youtube and Google. Opinion A-G Saugmandsgaard Øe.

Litigation. The dispute concerns the refusal by YouTube and Google to provide certain information required by Constantin Film Verleih with regard to users who have placed several films online in breach of Constantin Film Verleih’s exclusive exploitation rights. Constantin Film Verleih is asking YouTube and Google to provide it with the email addresses, telephone numbers and IP addresses of those users. The Landgericht Frankfurt am Main rejected  Constantin Film Verleih’s request that such information be provided. On appeal, the Oberlandesgericht Frankfurt am Main ordered YouTube and Google to provide the email addresses of the users concerned, rejecting Constantin Film Verleih’s request as to the remainder. The Bundesgerichtshof asks whether email addresses, telephone numbers and IP addresses are covered by the concept of “names and addresses” as set out in article 8(2)(a) of the Enforcement Directive. A-G Saugmandsgaard Øe is convinced that this is not the case. In quotes:

“30. Therefore, the usual meaning in everyday language must be the starting point in the process of interpreting the concept of ‘names and addresses’ used in Article 8(2)(a) of Directive 2004/48. There is little doubt that, in everyday language, the concept of a person’s ‘address’, about which the referring court asks in particular, covers only the postal address, as YouTube and Google have rightly submitted. (6) That interpretation is confirmed by the definition of the French word ‘adresse’ given in the Dictionnaire de l’Académie française, namely ‘la désignation du lieu (7) où l’on peut joindre quelqu’un’ (the designation of the place where you can reach someone).

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35. An examination of other EU legislation that refers to the email address or IP address supports that interpretation. Where the EU legislature has intended to refer to the email address (9) or the IP address, (10) it has done so expressly by supplementing the word ‘address’, as noted by YouTube and Google. To my knowledge, there are no examples of EU legislation where the terms ‘names and addresses’, used alone and in a general context, refer to the telephone number, IP address or email address.

36. Consequently, it follows from a literal interpretation of Article 8(2)(a) of Directive 2004/48 that the terms used by the EU legislature, namely the terms ‘names and addresses’, do not include any of the information set out in the questions referred for a preliminary ruling, as YouTube, Google, and the Commission have submitted.

37. That interpretation is confirmed by the historical interpretation set out by the Commission. The travaux préparatoires which led to the adoption of Directive 2004/48 (11) contain nothing to suggest, even implicitly, that the term ‘address’, used in Article 8(2)(a) of that directive, should be understood as referring not only to the postal address, but also to the email address or the IP address of the persons concerned.

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42. According to Constantin Film Verleih, the purpose of Article 8 of Directive 2004/48 is to enable the holder of intellectual property rights to identify the persons mentioned in that provision. Accordingly, and irrespective of its wording, Constantin Film Verleih takes the view that paragraph 2 of that article should be interpreted as referring to ‘any information that makes it possible to identify’ those persons and such information may include, depending on its availability, the telephone number, the email address, the IP address or even bank details.

43. In my view, to adopt that interpretation would be tantamount to the Court rewriting that provision. I understand of course that a rightholder such as Constantin Film Verleih would like Directive 2004/48 to be amended to enable it to identify possible infringers more easily in the specific context of the internet. However, rewriting that legislation falls not to the Court, but to the EU legislature.

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64. For all of those reasons, I consider that Article 8(2)(a) of Directive 2004/48 must be interpreted as meaning that the concept of ‘names and addresses’ set out in that provision does not cover, in respect of a user who has uploaded files which infringe intellectual property rights, the email address, the telephone number, the IP address used to upload those files or the IP address used when the user’s account was last accessed.”

Read the opinion here.