On 17 June 2021 the Court of Justice of the European Union passed down its judgment in the Mircom case, in a ruling that addresses the overlap between copyright trolls, peer-to-peer networks and data protection.
A licensee of copyright material that merely enforces a right to claim damages for infringement is commonly known as a “copyright troll”. The CJEU found that such an entity is not precluded from bringing an action against an infringer, even when the infringement only consists of making small fragments of the material available.
Yet the CJEU held that legitimate interest in processing personal data to identify the infringing individuals must be balanced against the rights and freedoms of the individuals under Article 6(1)(f) of the GDPR. Any enforcement of intellectual property rights must also be fair and equitable and applied in a way that provides safeguards against their abuse.
The judgment provides useful commentary on the use of peer-to-peer networks, the actions of copyright trolls and the interplay with data protection. While the substantive decision on balancing under Article 6(1)(f) of the GDPR and Article 8 of the IP Enforcement Directive was left to the referring court, the decision affirms that “copyright trolls” can potentially bring actions for damages, even when the infringement only relates to fragments of the material. The decision also underlines that the assessment of “making available to the public” under the Copyright Directive has a broad meaning in light of use online.
The decision expressly endorses that the purpose of the IP Enforcement Directive extends to third-party enforcement of IP rights. Yet the CJEU sought to protect internet users from copyright trolls by applying the Article 3 obligation of fairness and equitability to such claims.
In practice, as long as there is a basis under national law for the disclosure of personal data and such disclosure is considered reasonable and proportionate by the national court, the practical consequence of this decision might be that thousands of BitTorrent users could continue to receive infringement notices and settlement offers.
BitTorrent users may, however, derive some comfort from the CJEU’s instruction to the national court to examine “whether, in the light of all the particular circumstances of the present case, Mircom is in fact attempting, under the guise of proposing amicable solutions to alleged infringements, to extract economic revenue from the very membership of the users concerned in a peer-to-peer network such as the one at issue, without specifically seeking to combat the copyright infringements caused by that network”. Indeed, in the UK, in relation to the “delicate balancing exercise which the law requires”, the High Court refused Mircom Norwich Pharmacal relief in circumstances where it was not clear whether Mircom had “a genuine intention to try to obtain redress for the infringement rather than merely setting up a money-making scheme designed to embarrass and coerce as many people as possible (regardless of whether they were actual infringers) into making the payments demanded”. 
To read the full article, click here. Written for Entertainment Law Review.