Interestingly, the European Court of Justice ruled today, in a unrelated case, that
privacy is a fundamental right that cannot be superseded by other interests, and certainly not in a disproportionate manner.
As you say, unrelated. But nice, very nice. http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-11/cp110126en.p... http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=Submit&numaff=C... James S. Tyre Law Offices of James S. Tyre 10736 Jefferson Blvd., #512 Culver City, CA 90230-4969 310-839-4114/310-839-4602(fax) jstyre@jstyre.com Policy Fellow, Electronic Frontier Foundation https://www.eff.org The significance of this Judgment is in relation to how they dealt with the prioritisation of rights, that is the rights if intellectual property owners, the rights of ISPs to conduct their business freely and the rights of consumers to privacy. "The injunction requiring installation of the contested filtering system involve a systematic analysis of all content [ISPs cannot afford this and at the end of the day, this cost would be borne by customers somehow] 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". (Highlighted portion is mine) The consideration in how the Judges arrived at their decision is on [para 52, 53] where there is no guarantee that lawful content would not be blocked. After considering all the rights stemming from the Directives listed in para 55, the courts held in favour of "privacy" of consumers that is fundamental rights trumping when reading all of the Directives together. Although the European Court of Justice recommended that harmonization take place. Some may recall a thread initiated by Carlton attaching Geist's article. I apologise for repeating previous posts but am doing so in case there are those that did not read the other threads. Most of us are aware of the controversial bill that was debated in US Congress called the Stop Online Piracy Act (SOPA) which has had a few multinationals raising a ruckus for obvious reasons. The Bill is accessible here:http://thomas.loc.gov/cgi-bin/query/D?c112:1:./temp/~c11213UD8d: Whilst some of you may wonder what that has to do with us who do not live in the United States of America, that Bill will force the taking down of websites if there are infringements to intellectual property rights. Well before the SOPA, the US Government took down a Spanish Website called Rojadirecta even though the Spanish government and people protested and their Petition: See: https://www.eff.org/files/Petition%20for%20Release%20of%20Seized%20Goods%20Final.pdf<https://www.tflwebmail.com.fj/owa/redir.aspx?C=ea557e11430047ab9ac9834c05d4a48a&URL=https%3a%2f%2fwww.eff.org%2ffiles%2fPetition%2520for%2520Release%2520of%2520Seized%2520Goods%2520Final.pdf> You can see the extra-territorial jurisdictional implications through that example. You can also read a lighter version here: http://www.publicknowledge.org/blog/us-government-rojadirecta-owners-must-prove-i<https://www.tflwebmail.com.fj/owa/redir.aspx?C=ea557e11430047ab9ac9834c05d4a48a&URL=http%3a%2f%2fwww.publicknowledge.org%2fblog%2fus-government-rojadirecta-owners-must-prove-i> (I apologise that this is a secondary source) There is also an interesting perspective by Geist via http://www.thestar.com/article/1085475--geist-internet-belongs-to-us-u-s-argues<https://www.tflwebmail.com.fj/owa/redir.aspx?C=ea557e11430047ab9ac9834c05d4a48a&URL=http%3a%2f%2fwww.thestar.com%2farticle%2f1085475--geist-internet-belongs-to-us-u-s-argues> (I am re-attaching this link that was initially sent by Carlton) As pointed out by James S Tyre during the discussions on the other thread, the European Court of Justice handed down a decision. I found this Judgment interesting in the wake of the controversies surrounding SOPA. To see impact of SOPA, read the Summary, Problems and Implications of the SOPA visit http://www.cdt.org/files/pdfs/SOPA%202-pager%20final.pdf<https://www.tflwebmail.com.fj/owa/redir.aspx?C=ea557e11430047ab9ac9834c05d4a48a&URL=http%3a%2f%2fwww.cdt.org%2ffiles%2fpdfs%2fSOPA%25202-pager%2520final.pdf> There are some interesting developments by the European Court of Justice on the prioritisation of rights, where EU law precludes the imposition of an injunction by a national court which requires an Internet Service Provider (ISP) to install a filtering system with a view to preventing the illegal downloading of files, see the Press Release: http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-11/cp110126en.pdf<https://www.tflwebmail.com.fj/owa/redir.aspx?C=ea557e11430047ab9ac9834c05d4a48a&URL=http%3a%2f%2fcuria.europa.eu%2fjcms%2fupload%2fdocs%2fapplication%2fpdf%2f2011-11%2fcp110126en.pdf> The actual Judgment that was just released on the 24th November, 2011 is available here: http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=Submit&numaff=C-70/10<https://www.tflwebmail.com.fj/owa/redir.aspx?C=ea557e11430047ab9ac9834c05d4a48a&URL=http%3a%2f%2fcuria.europa.eu%2fjurisp%2fcgi-bin%2fform.pl%3flang%3dEN%26Submit%3dSubmit%26numaff%3dC-70%2f10> Whilst this is true for ISPs, it also is interesting to see the manner in which IP addresses is viewed by the European Court of Justice in the Judgment which makes the Judgments interesting. -- Salanieta Tamanikaiwaimaro aka Sala Tweeter: @SalanietaT Skype:Salanieta.Tamanikaiwaimaro Cell: +679 998 2851