A year ago, Walled Culture wrote about an extremely important case that was being considered by the Court of Justice of the European Union (CJEU), the EU’s top court. The central question was whether the judges considered that copyright was more important than privacy. The bad news is that the CJEU has just decided that it is:
The Court, sitting as the Full Court, holds that the general and indiscriminate retention of IP addresses does not necessarily constitute a serious interference with fundamental rights.
IP addresses refer to the identifying Internet number assigned to a user’s system when it is online. That may change each time someone uses the Internet, but if Internet Service Providers are required by law to retain information about who was assigned a particular address at a given time, then it is possible to carry out routine surveillance of people’s online activities. The CJEU has decided this is acceptable:
EU law does not preclude national legislation authorising the competent public authority, for the sole purpose of identifying the person suspected of having committed a criminal offence, to access the civil identity data associated with an IP address
The key problem is that copyright infringement by a private individual is regarded by the court as something so serious that it negates the right to privacy. It’s a sign of the twisted values that copyright has succeeded on imposing on many legal systems. It equates the mere copying of a digital file with serious crimes that merit a prison sentence, an evident absurdity.
As one of the groups that brought the original case, La Quadrature du Net, writes, this latest decision also has serious negative consequences for human rights in the EU:
Whereas in 2020, the CJEU considered that the retention of IP addresses constituted a serious interference with fundamental rights and that they could only be accessed, together with the civil identity of the Internet user, for the purpose of fighting serious crime or safeguarding national security, this is no longer true. The CJEU has reversed its reasoning: it now considers that the retention of IP addresses is, by default, no longer a serious interference with fundamental rights, and that it is only in certain cases that such access constitutes a serious interference that must be safeguarded with appropriate protection measures.
As a result, La Quadrature du Net says:
While in 2020 [the CJEU] stated that there was a right to online anonymity enshrined in the ePrivacy Directive, it is now abandoning it. Unfortunately, by giving the police broad access to the civil identity associated with an IP address and to the content of a communication, it puts a de facto end to online anonymity.
This is a good example of how copyright’s continuing obsession with ownership and control of digital material is warping the entire legal system in the EU. What was supposed to be simply a fair way of rewarding creators has resulted in a monstrous system of routine government surveillance carried out on hundreds of millions of innocent people just in case they copy a digital file.
Robin Edgar
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