Lycos ‘Personal Data’ decision
p2pnet.net News:- It’s been suggested that the Dutch Supreme Court should rule that Lycos must hand over the personal data of an anonymous customer to a private third party.
The so-called "Advocaat-Generaal", a neutral counsel to the Supreme Court on cases brought before the court, apparently follows the conclusion in an earlier ruling by the Amsterdam Court of Appeals in the Lycos v Pessers case.
Pessers, a Dutch lawyer and stamp trader who offered stamps for sale on eBay, was accused of fraud by a Lycos customer on a website hosted by Lycos.
Pessers demanded the personal data of this customer to take legal action, and a court of first instance ordered Lycos to comply. Lycos appealed, but the Amsterdam Court of Appeals ruled the ISP had to provide the data, even though it acknowledged the accusations on the web site wern’t "apparent unlawful".
This condition for website removal by ISPs derived from the European E-Commerce Directive wasn’t met and the decision was criticized for bringing an a less strict test for providing personal data by the ISP:
a) that it is likely that the information is unlawful against the third party
b) the third part has a genuine interest in obtaining the personal data
c) that there are no other, less-intrusive means to obtain the personal data
d) weighing the interests of the third party, the ISP and the subscriber
If the Dutch Supreme court takes the advice of the Advocaat-Generaal, it may have important consequences for both anonymous speech on the internet, the (liability) position of ISPs, and, the related provision of personal data of file-sharers by ISPs to anti-piracy organisation.
In relation to the last point, Dutch anti-piracy organisation BREIN financed Pessers’ defense before the Supreme Court by providing two lawyers.
BREIN is currently in court to obtain the personal data of file-sharers from five Dutch ISPs, and a confirmation of the Lycos v Pessers case by the Dutch Supreme Court would undoubtedly provide it with a (legal) advantage.
In his advice. the Advocaat-Generaal apparently rejected Lycos’ view, also argued by the ISP’s attorney in the current file-sharing case, that criminal proceedings would be the path to follow to obtain personal data. This will be a very interesting legal summer for anonymous speech, the position of ISPs and the crystalisation of legal issues surrounding copyright enforcement against file-sharers.
There’s been a heat wave in Holland the past few days, and there will be a second, legal one in the coming months.
Rik Lambers – CoCo
[Lambers is a former researcher at the Institute for Information Law, Amsterdam, who's now in transition to a new full time job in the field of IP/Internet law. He's also an associate member of the European INDICARE project, which researches consumer issues related to DRM.]
