BREIN refused access to private banking information for infringement claim

PC World have run an article reporting that a Dutch court has dismissed a case brought by Dutch anti-piracy group BRIEN, saying that privacy laws protecting bank account holders are more important than providing information to identify potential  defendants in an alleged  copyright infringement caase. The ruling by the Amsterdam district court favoured ING Bank, saying that that the bank does not have to reveal who has access to a bank account, whose number is posted on the website FTD World

PC World explain

“FTD World, at ftdworld.net, is a Usenet-indexing website that lists links to binary files posted on Usenet. It also provides files in the NZB format listing that allows users to download the posted files more easily. By doing this, the site provides access to copyrighted entertainment files including books, movies, music, games, and software without the permission of the copyright holders, according to Dutch anti-piracy foundation BREIN.”

Unsurprisingly BREIN, which represents authors, artists, publishers, producers and distributors of music, film, games, interactive software and books, wanted the court to force ING to reveal who is behind a bank account and was receiving donations made via the site: BREIN had previously been unable to track down the domain name registrant and had received no reply to a letter sent to the Russian hosting provider. The only information BREIN had was that the bank account number belonged to a woman, identified only as "[F]" by the court, who was born in 1927 (so was an unlikely 90 year old file sharing platform owner)  and who had moved to Suriname in 2009. ING admitted that someone else was authorized to use the account on the woman's behalf, but added that Dutch data protection law prevented the bank from revealing this person's or persons' identity. The Bank, however, did reveal that the women's debit card was used for cash withdrawals in the northern part of Amsterdam between February 4 and February 18. BREIN had asked the court to order revelation of any other names, phone numbers, email addresses, and postal addresses linked to the bank account.

In dismissing BREIN's claims, the court noted that ING were not instrumental in the alleged copyright infringement by FTD World, and only provides bank transactions, which are not essential to the potenttail copyright infringements, with Judge Sj.A. Rullmann saying "There is no relationship between ING Bank and copyright infringement" and put the onus  on BREIN to so more  to trace the person behind the site,  noting that BREIN didn't even try to write to the woman attempt to trace her. Judge Rullmann held that all bank clients should be able to trust their banks, and client data should only be communicated in very exceptional circumstances. Further IF that data should be shared, it should be into ‘safe hands’.  The Judge did note that BREIN could also have filed a criminal complaint.

BREIN were ordered to pay £1,800 (€2,100) t cover ING's costs (litigation fees).

http://www.anti-piracy.nl/english.php

http://www.pcworld.com/article/2038975/banking-privacy-prevails-over-copyright-enforcement-dutch-court-rules.html

Is it a red letter day for The Pirate Party over Dutch injunction?

It looks like the principles behind SABAM v Netlog and more importantly SABAM v Scarlet might be tested soner rather than later – and the testing might be done by none other than the Pirate Party in the Netherlands who have recently been taken to task by Dutch anti-piracy group BREIN. The Scarlet decision by the ECJ (on a referral from the courts in Belgium) decided inter alia that the fundamental rights enshrined in EC Directives (2000/31, 2001/29, 2004/48, 95/46 and 2002/58) must be interprested as precluding an injunction made against an internet service provider which requires it to install a system for filtering all electronic communications …. which applies to all customers indiscriminatly. This did not trouble the High Court in Newzbin 2.

The decision in Netlog (a social networking site) similarly held that a filtering system that would require the owner to carry out general minitoring of information stored on its servers would be prohibited by Artivle 15(1) of the E-Commerce Directive.

In the Pirate Party case, BREIN had successfully secured a web-block injunction against the Pirate Bay itself January, on the ground that the Pirate Bay was liable for the copyright infringement of many of its users. The injunction named two internet service providers, Ziggo and XS4ALL, and BREIN is now pursuing action to extend the injunction to other internet providers in the Netherlands. The thorn in their side have been ‘savvy file sharers’ who know exactly how to get round web blocks – and then make that information available online to others – so BREIN has been monitoring them too. And guess who one of those offering this advice is – yes – step forward the Dutch Pirate Party who posted a reverse proxy’ to enable access (effectively nullifying the court order) until ordered to take that down by the Dutch court in a new injunction. The Court in the Hague required the political party to take the proxy offline or pay a fine of €10,000 (£8,225) per day, up to a maximum €1,000,000 (£822,500).The Pirate Party sort of complied, but then seemingly posted a new page complaining about the injunction, and posting new advice and links to allow keen file sharers to access the Pirate Bay. BREIN subsequently demanded these be removed, though so far it seems that only the hyperlinks have been taken down.

Now the Dutch Pirate Party has now announced it plans to sue BREIN itself over the injunction and Torrentfreak reports that the Dutch Pirate Party said: "By dragging BREIN to court, the Pirate Party finally has the chance to put forward arguments to strike the court injunction that was unilaterally imposed on it last Friday by the Dutch entertainment industry organisation" and in a blog Dutch Party member Blauwbaard said “after the legal harassment continued here on Saturday night, when BREIN sent an email at 8.15pm demanding additional draconian measures under the threat of penalties, the Pirates are anxious to finally get their day in court”. Will this one run? Best I can say is that it might do.

Three of the Pirate Bay co-founders had previously threatened to sue BREIN for defamation in Sweden and Holland.

http://torrentfreak.com/pirate-party-ordered-to-shut-down-pirate-bay-proxy-120414/

http://the1709blog.blogspot.co.uk/2012/02/filtering-is-not-for-social-networks.html

and http://the1709blog.blogspot.co.uk/2011/11/will-copyright-owners-see-red-over.html