On 24 November 2011, the Court of Justice of the EU (the
"ECJ") handed down its judgment in case 70/10 Scarlet
v. SABAM. In this case, the ECJ was requested to clarify
whether national courts could order Internet Service Providers
(ISPs) to implement filtering software blocking illegal filesharing
in order to protect intellectual property rights (see, for a
detailed discussion of the judgment, VBB on Belgian Business
Law,, Volume 2011, No. 11, p. 3, available atwww.vbb.com).
To answer this question, the ECJ had to strike a balance between
the protection of the intellectual property right enjoyed by
copyright holders on the one hand and other fundamental rights and
freedoms of the parties concerned by the filtering measures. In
this context, the ECJ confirmed that IP addresses are personal data
as defined by Directive 95/46/EC of the European Parliament and of
the Council of 24 October 1995 on the protection of individuals
with regard to the processing of personal data and on the free
movement of such data. In particular, the ECJ considered that the
filtering system in question may infringe the fundamental rights of
the ISPs' customers, namely their right to protection of their
personal data. The ECJ held that users' IP addresses are
protected personal data "because they allow those users to
be precisely identified".
In Belgium, the ECJ judgment will not change the existing
practice, as IP addresses are already treated as personal data.
Indeed, this view has been taken by the Belgian Data Protection
Authority (Commissie voor de bescherming van de persoonlijke
levenssfeer / Commission de la protection de la vie
privée) and confirmed by national courts. However, even
though the Article 29 Working Party repeatedly advised that IP
addresses should be regarded as personal data, especially in those
cases where the processing of IP addresses is carried out with the
purpose of identifying the users of the computer (for instance, by
copyright holders in order to prosecute computer users for
violation of intellectual property rights), this view has not been
shared by all Member States. For instance, certain national courts
have held that IP addresses should not be regarded as personal
data. The present decision now imposes a harmonised interpretation
of the concept of personal data in relation to IP addresses
throughout the EU. Remarkably, the European Commission's
legislative proposal for a new data protection framework, which
will be officially announced in January 2012, is likely to
expressly provide that IP addresses constitute personal data.
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