Usenet provider does not need to store extensive customer data for Stichting Brein

The Court of Appeal of ‘s-Hertogenbosch has ruled that usenet provider Newsconnection should not organize its business operations, as the Brein Foundation demanded, in such a way that it must store all data that can help Brein identify uploaders. There is, however, a duty of care.

In the appeal case, the Court ruled that it would go too far if the usenet provider was obliged to organize its administration in such a way that it can be found at any time which statements have been made by which of its customers. If that were to be imposed, it would entail too great an invasion of the privacy of the provider’s customers. This case concerns Stichting Brein, which demands a Usenet provider to hand over data from three customers. These customers, namely ‘Hannes3’, ‘QoQ’ and ‘Bassie10’, allegedly broke the law by uploading copyrighted material.

Stichting Brein wanted Newsconnection to enter into an agreement with a third party, the hosting provider where Newsconnection rents server space, to ensure that the Usenet provider is always able to verify which IP addresses and customer IDs are responsible for certain uploads. According to the judges, however, there is no legal basis to oblige the Usenet provider to keep all data that could benefit Stichting Brein. A periodic penalty payment to enforce that obligation cannot therefore be maintained. The judge says that Brein’s demands ‘go far beyond the law article on which they are based’.

Moreover, the Court argues that an obligation to conclude a contract with a third party with a certain prescribed content would entail too far-reaching an infringement of the autonomy of the parties concerned. The Court also says that it has not been shown that customers other than the three have also infringed copyrights.

However, the judges of the Court of Appeal do reiterate the position, as was also imposed in the earlier preliminary relief proceedings, that the usenet provider has a due care obligation to provide a limited degree of relevant name and address details to Brein. Newsconnection must therefore report to the copyright watchdog who the infringers are. In practice, this may mean that the Usenet provider cannot hide behind the statement that it does not know the customer IDs of the infringers. If necessary, the Usenet provider must stipulate that the hosting provider registers or stores the relevant customer data for a longer period of time and makes it available to the Usenet provider upon request.

Furthermore, the Usenet provider may also fulfill the obligation to provide the requested data to Stichting Brein in another way. The importance of the anonymity of the Usenet provider’s customers must give way to the interest of Brein in stopping the infringements. The Court writes about this: “If the provider is concerned that in that case the customers, who value their anonymity precisely in order to carry out their infringing acts in relative anonymity, will leave, underlines that only that he is aware that the that customers actually do mainly for that reason and that he knowingly facilitates such infringing acts. That is not a right that deserves protection.”