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Following the criticism and amendments expressed by the Conseil d’Etat during its examination provision of an opinion, the draft legislation on “promoting the diffusion and protection of creation on the Internet”, called the Creation and the Internet Act (see IRIS 2008-3: 12), was presented at the meeting of the Council of Ministers on 18 June 2008 by Christine Albanel, Minister for Culture. The purpose of the text, the product of the agreements resulting from the Olivennes mission (see IRIS 2008-1: 12), is to prevent and combat piracy while guaranteeing the ownership rights and moral rights of...

A recent decision of the Tribunal Supremo, sala de lo penal (Spanish Supreme Court - TS), through its criminal division, on a child pornography issue (Judgement STS 19327/2008, dated 9 May of this year), created considerable debate as regards the implications for P2P use and the potential conflict with both privacy protection and telecoms secrecy and inviolability. Essentially, the TS concluded that upon connection to a P2P network, in this case Emule, an implicit consent is provided by the user, known and accepted by said user, which overrides the secrecy of communications, meaning that data provided...

The courts are being repeatedly called upon to deal with issues relating to the identification of Internet providers. The reason for this lies in the requirements of section 5 of the Telemediengesetz (Telemedia Act – TMG), according to which service providers must keep certain easily recognisable information directly accessible and constantly available to commercial telemedia, which customers are normally offered against payment. According to section 5(1)(2) of the Telemedia Act, which transposes Article 5(1)(c) of Directive 2000/31/EC (“Directive on Electronic Commerce”) into German law, this...

On 14 April 2008, the Landgericht Offenburg (Offenburg District Court) decided that ISPs must disclose to the public prosecutor's office or the police the name and address of the owner of a dynamic IP address in order to establish the identity of a user of a file-sharing network, even without a judicial order. In the LG Offenburg's opinion, this information (name and postal address) is an example of the customer data referred to in Art. 3 no. 3 of the Telekommunikationsgesetz (Telecommunications Act - TKG), the disclosure of which does not require a judicial order. At the same time, it quashed...

After the Bundesgerichtshof (Federal Supreme Court – BGH) ruled on various injunction suits brought by Princess Caroline of Hanover in March last year concerning the relationship between the privacy of famous people and the freedom of the press under Art. 5 para. 1.2 of the Basic Law (case no. VI ZR 51/06 and VI ZR 52/06), the Bundesverfassungsgericht (Federal Constitutional Court – BVerfG) has now also had to deal with this issue following complaints that the Constitution had been infringed. The complainants in these proceedings were Princess Caroline on one side, and two of the press companies...