The ECJ's judgment in Promusicae: The unintended consequences – music to the ears of copyright owners or a privacy headache for the future? A comment

The European Court of Justice (“ECJ”) recently delivered its judgment on a reference for a preliminary ruling from the Spanish courts in proceedings by Productores de Música de España SaU (“Promusicae”) against Telefónica de España SaU (“Telefonica”, Case C-275/06 judgment dated 29 January 2008). Promusicae is a not-for-profit organisation whose members are the holders of copyright in musical works and music videos; Telefonica is a Spanish Internet service provider (“ISP”). The context for the proceedings was unlawful music file sharing via the Internet by Telefonica users of unknown identity.On a superficial level, this decision confirms that Community law recognises both data privacy and copyright (as a property right) as fundamental rights and requires a balance to be struck between them. However, the case is more noteworthy for some perhaps unintended consequences in relation to (a) the scope of telecommunications traffic data and (b) the exceptions applicable to the protection of such information.