The Story of the Two Disclosure Approaches – A comparative study on Austria and Poland
The communication of the identity of the tortfeasor to the aggrieved party is an indispensable precondition of initiating civil proceedings. The disclosure of the identity of the alleged infringer constitutes one of the most crucial problems in the European system of the protection of personal data on the Internet. There is no direct provision in the EU legislation and case-law obliging the data controller to communicate the personal data of the alleged infringer on demand of the prospective plaintiff. Moreover, a specific nature of the IP address calls into question its affiliation to the personal data. Even in the Promusicae judgement, the European Court of Justice (ECJ) guided the Member States how to regulate the matter. The leeway left by ECJ for all EEA lawmakers is limited by fair balance between underlying fundamental rights, general principles of EU law and the principle of proportionality. Over recent years many legislative and judicial authorities within the EU had to face the problem of the disclosure of IP addresses for private entities. The problem in question is also connected with Member States’ data retention systems and its compliance with EU standards expressed namely in the E-privacy Directive and the Data Retention Directive. The purpose of this presentation will be to compare and contrast Polish and Austrian approaches towards the problem in the light of Promusicae standard.
- 1. Introduction
- 2. IP address – personal data or something else?
- 2.1. Promusicae – Solomon’s judgement
- 2.2. Austrian P2P problem
- 2.3. Poland – another dimension of disclosure
- 2.4. Retention – anti-terrorist remedy employment in civil litigation
- 3. Concluding remarks
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