Dutch Supreme Court Advised: ISP Must Provide Personal Data

The Dutch Supreme Court has been advised to decide that the ISP Lycos has to hand over the personal data of an anonymous customer to a private third party. The so-called "Advocaat-Generaal", a neutral counsel to the Supreme Court on cases brought before the court, apparently follows the conclusion in an earlier ruling by the Amsterdam Court of Appeals in the Lycos v. Pessers case.

Pessers, a Dutch lawyer and stamp trader that offered stamps for sale on eBay, was accused of fraud by a Lycos customer on a website hosted by Lycos. Pessers demanded the personal data of this customer to take legal action, and a court of first instance ordered Lycos to comply. Lycos appealed the decision, but the Amsterdam Court of Appeals decided that the ISP did have to provide the data, even while it acknowledged that the accusations on the website were not "apparent unlawful". This condition for website removal by ISPs derived from the European E-Commerce Directive was not met, and the decision was criticized for bringing an a less strict test for providing personal data by the ISP:

a) that it is likely that the information is unlawful against the third party
b) the third part has a genuine interest in obtaining the personal data
c) that there are no other, less-intrusive means to obtain the personal data
d) weighing the interests of the third party, the ISP and the subscriber

If the Dutch Supreme court takes over the advice of the Advocaat-Generaal, this may have important consequences for both annymous speech on the internet, the (liability) position of ISPs and, related, the provision of personal data of file-sharers by ISPs to anti-piracy organisation. In relation to the last pooint, it was the Dutch anti-piracy organisation BREIN that financed Pessers defense before the Supreme Court by providing two lawyers. BREIN is currently in court to obtain the personal data of file-sharers from five Dutch ISPs, and a confirmation of the Lycos v. Pessers case by the Dutch Supreme Court would undoubtedly provide it with a (legal) advantage. In his advice the Advocaat-Generaal apparently rejected Lycos' view, as also argued by the ISPs' attorney in the current file-sharing case, that criminal proceedings would be the path to follow to obtain personal data. This will be a very interesting (legal) summer for anymous speech, the position of ISPs and the crystalisation of legal issues surrounding copyright enforcement against file-sharers. There has been a heat wave in Holland the past few days, and there will be a second, legal one in the coming months.

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Decision Lycos v. Pessers, Amsterdam Court of Appeals [PDF - Dutch]
Extensive commentary on the Amsterdam Court of Appeals' decision [Dutch]
Thru webwereld [Dutch]