Provision of Name and Address Details by an ISP
Judgment of the Amsterdam Court of Appeal, 14 December 2010
(123Video – Ziggo)
23Video operates a website with User Generated Content, on which
users can post and make available content to the internet public.
To be able to upload content, a user has to submit a number of data
to 123Video: his name, date of birth, country of origin, sex, and
his e-mail address, and he has to agree to the general terms and
conditions of 123Video.
In the case at issue, an uploader placed content on the website
of 123Video which turned out to be protected by copyright: videos
of the Dutch porn star Kim Holland. Kim Holland claimed almost
€500,000 in damages from 123Video. In November 2010, the Court of
Amsterdam ruled that 123Video itself was infringing the copyright
of Kim Holland, because 123Video itself was considered to be the
communicator to the public (in line with the SGAE/Rafael
Hoteles judgment of the European Court of Justice from
2006).
123Video wanted to start an action against the uploader who had
placed the videos of Kim Holland online, but to do this 123Video
needed the address details of that uploader. 123Video did not have
these details itself. First, 123Video tried to attain its goal by
starting proceedings against Kim Holland, in which it requested the
Court to order Kim Holland to give these address details to
123Video, or – if Kim Holland would not have them – to demand these
address details from the Internet Service Provider, Ziggo. The
Court rejected this claim of 123Video, mainly on the ground that
123Video could also make such a request to the ISP itself. Next,
123Video did so indeed: it claimed that Ziggo hand over the address
details of the uploader on the basis of the IP address known to
123Video and on the basis of the e-mail address. In 2009, the Court
allowed this claim of 123Video. Ziggo was ordered to provide all
personal data known to it concerning the Ziggo subscriber with that
particular e-mail address.
Ziggo appealed, and the Amsterdam Court of Appeal arrived at a
different opinion than the Court. First, the Court of Appeal listed
all the interests of the parties involved. Ziggo has an interest in
the protection of the privacy of its subscribers, and in that of
its own reputation (as an ISP acting carefully), and Ziggo has an
interest in limiting the costs involved in assessing requests for
the provision of name and address details. 123Video, on the other
hand, has an interest in being able to implead the uploader for
infringement of the copyrights of Kim Holland.
The Court of Appeal considered both interests to be substantial,
but denied the claim of 123Video anyway. The Court of Appeal was
not convinced that 123Video had no other means to retrieve the
uploader's address. The Court of Appeal assumed that 123Video
already had the correct name and date of birth of the uploader, and
that a clerk of court could retrieve the correct address from the
Municipal Database with the help of these data. Therefore the Court
of Appeal did not deem it necessary for Ziggo to provide the
address to 123Video. If 123Video could easily have come by the
address details itself, the question is why it started legal
proceedings to make the court force Ziggo to provide it with these
details. In the proceedings in first instance, 123Video still
expressly claimed the date of birth of the uploader. All in all,
this judgment confirms that an ISP does not have to surrender data
at once when it receives a request to that end.
This judgment is in line with other Dutch case law on this
topic. In 2005, the Supreme Court adjudicated a similar matter in
the Lycos/Pessers case, and since then there have been
court cases against, inter alia, UPC, KPN and Google. The
Dutch courts always weigh the interests of the parties. When we
make a list of related case law, the courts appear to consider the
following circumstances relevant: (a) is there a less far-reaching
possibility to obtain the name and address details? (b) does the
petitioner have a real and legitimate interest in obtaining the
name and address details? (for example, being able to start legal
proceedings); (c) is it plausible that the subscriber has acted
unlawfully vis-à-vis the petitioner, (d) is it beyond reasonable
doubt that the data provided by the petitioner can actually be
traced back to the individual who has acted unlawfully? (e) has the
petitioner lawfully obtained the data on which he bases his
argument?, and (f) what is the burden for the ISP (in costs or
time) of providing the name and address details?