The highest legal counselor of the European judicial system claims that the retention and disclosure of the identity of individuals suspected of online piracy does not violate privacy directives in the European Union. The case revolves around the practices of a prominent French agency.
This is the opinion of Maciej Szpunar, advisor to the European Court of Justice, which is now causing a stir among users of online piracy services in Europe.
His legal opinion was gathered in the context of a long legal battle that puts France in the dock. According to the accusation, the Gallic nation harbors the main infringers of copyright and intellectual property rights in the Union.
As such, faced with a significant increase in the fight against online piracy, we now have a heavy and serious endorsement for a package of drastic measures.
France may be obliged to disclose the identity of millions of BitTorrent users
The French nation created the Hadopi agency 13 years ago to combat online piracy and preserve intellectual property rights of various content distributed in the country. During this period, the agency is said to have collected data on millions of users of the BitTorrent platform.
It is important to emphasize that, in the first phase, registering those who used BitTorrent in France was already used to issue warnings. In practice, some fines, gradually increasing to criminal penalties and even cutting off the Internet for those individuals.
In other words, we have already seen an escalation of measures taken to mitigate online piracy in recent years.
On the other hand, the operating costs of this program have already cost French taxpayers 82 million euros over the past 10 years, according to estimates from the La Quadrature du Net group.
Furthermore, this entity points out that the actions of the Hadopi agency have ultimately destroyed citizens’ privacy by carrying out what they consider to be mass surveillance.
The Court of Justice of the European Union has clarified the legal interpretation
According to this entity, the practice in question would represent a gross violation of privacy laws in the European Union. In fact, the civil group for online rights condemns the registration and storage of data and indicators of French citizens. The case was first evaluated by local judicial authorities and then escalated to the highest European instances.
This is where the legal opinion of counselor Maciej Szpunar, of Polish origin, comes in. In fact, this is not the first pronouncement of the illustrious counselor, although his opinion is not binding. In this regard, see this pronouncement from October of last year.
In short, under community legislation, European nations cannot approve rules that stipulate mass surveillance and retention of location data and Internet browsing history. However, retaining this data is allowed as an exception, for a restricted group and with a clear intention.
The dilemma between online privacy vs. combating online piracy
In other words, this can only be done as a “preventive measure” for the purposes of combating “aggravated crime”. In the opinion of Maciej Szpunar, this situation is a “serious interference with fundamental rights,” but he recognizes its necessity in view of the specific case and its purpose.
“Faced with general impunity for this type of offense committed online,” something had to give. In this case, the compromise ended up leaning towards punishment for crimes committed on the Internet. Thus, the privacy of citizens, who are potentially infringers, is violated to the necessary extent to ensure this preventive and combat purpose.
In light of the above, the actions of the French agency Hadopi may continue as usual. Its modus operandi consists of collecting data and identifiers of users who use not only BitTorrent but also other platforms that facilitate online piracy. These data can then be used to impose sanctions on recurrent users engaging in these acts.
The measure can be replicated in the fight against online piracy in Europe
However, the use of this data and user information is only permitted as evidence and investigation to enable the identification of the offender.
Finally, in Szpunar’s opinion, a new balance between the rights in question is necessary. On one hand, we have the protection of personal privacy, and on the other, intellectual property, with neither value being fixed or immutable.
In fact, to support his opinion, Szpunar points out that the majority of IP addresses collected and stored are dynamic. That is, they only identify a moment – a potential violation – and do not allow continuous surveillance of the user.
In any case, we must now wait to assess the true potential of this legal opinion that supports the French agency. It is therefore a possible scenario for the replication of this notoriously controversial methodology in other European Union states.
“This interpretation is, in my view, inevitable,” Szpunar also points out, “under penalty of all types of online offenses escaping any form of sanction or punishment,” he adds. The full text can be consulted via PDF or online.