Balancing fundamental rights
As discussed in the previous subsection, privacy rights have been recognized as human rights. Although clearly beneficial for consumer protection, this may lead to some dilemmas, as privacy rights might turn out to clash with other fundamental rights. This and the following subsection will examine this point.
An important case in this sense was Promusicae, decided in 2008 by the ECJ, which founded its judgment directly on the Charter of Fundamental Rights. In this case the Court had to balance conflicting fundamental rights: the right to privacy on the one hand and the rights to the protection of property and to an effective remedy on the other.
Promusicae, an organization of producers and publishers of musical and audiovisual recordings, asked the Spanish Court to oblige Telefonica to disclose the identities of the customers to whom it provided Internet access. Promusicae alleged that some customers were illegally sharing files in which Promusicae’s members held the exploitation rights. The national court referred a question to the ECJ for a preliminary ruling, asking whether Community law, read also in the light of the Charter, must be interpreted as requiring Member States to lay down an obligation to communicate personal data, in order to ensure the effective protection of copyright in the civil proceedings.
The ECJ started by examining Directive 2002/58, which provides at Article 5(1) that Member States must ensure the confidentiality of communications by means of a public communications network and publicly available electronic communications services, and of the related traffic data. An exception is provided by Article 15(1) of the same directive, which allows Member States to adopt measures that may restrict the scope of the obligation to ensure personal data confidentiality imposed on them by Article 5, where this is inter alia necessary to safeguard national or public security or to the detection and prosecution of criminal offences. The ECJ considered in this regard that while Directive 2002/58 does not preclude the possibility of Member States to establish an obligation to disclose personal data in the context of civil proceedings, they are not obliged to adopt such legislative measures. Thus, in the present case, the ECJ held that no obligation of disclosure existed.
When it came to fundamental rights, Promusicae invoked Articles 17 and 47 of the Charter, concerning the protection of the right to property and to an effective remedy. The ECJ admitted that these rights were general principles of Community law, but stated that they must be balanced with the fundamental right to a private life in Article 7 of the Charter. Recital 2 in the preamble to Directive 2002/58 states that the fundamental rights provided by the Charter, in particular Article 7 on private life and Article 8 on the protection of private data, have to be respected. Therefore, the right to privacy has to be balanced against the right to intellectual property. In balancing these different rights, the ECJ referred to Directive 2002/58 itself, which gives concrete indications of when data can be disclosed, as well as to other relevant directives and Member States’ provisions transposing those directives.
The Court went on to hold that Member States had, in particular, to ensure a fair balance between fundamental rights when transposing relevant directives. Moreover, the ECJ stated that ‘the authorities and courts of the Member States must not only interpret their national law consistent with relevant directives, but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights’. Finally, the ECJ concluded that under Community law Member States are not obliged to impose the disclosure of personal data in order to ensure the protection of copyrights in the context of civil proceedings.
This case shows the important role that the Charter of Fundamental Rights can play in the ECJ’s jurisprudence. Moreover, it suggests that the Court is taking an activist stance to ensure privacy protection in the EU. For consumers, this ruling can be considered a positive outcome. However, a high degree of privacy protection may raise new challenges in the EU market, as it risks promoting abusive behaviour and fuelling piracy. The debate on how to combat piracy, while at the same preserving privacy is still open, and new instruments still have to be found to address this dilemma.
-  Case C-275/06, Productoresde Musica de Espana (Promusicae) v Telefonica de SAU ECR I-271.
-  Case C-275/06, Promusicae v Telefonica  ECR I-271, paras 29-31.
-  See also the analysis of the case in X. Groussot, ‘Rock the KaZa: Another Clash of FundamentalRights, Case C-275/06, Productores de Musica de Espana (Promusicae) v Telefonica de Espana ,Judgment of the Court (Grand Chamber) of 29 January 2008’, (2008) 45 CML Rev., pp. 1745-66.
-  Case C-275/06, Promusicae v Telefonica  ECR I-271, paras 50-5.
-  Case C-275/06, Promusicae vTelefonica  ECR I-271, paras 63-5.
-  Case C-275/06, Promusicae v Telefonica  ECR I-271, para. 70.
-  For further discussion on the role of fundamental rights in contracts and e-commerce see Mak,‘Fundamental Rights and the European Regulation of iConsumer Contracts’ (n 60), pp. 435-6.