Privacy and Piracy in Cyberspace: Justice for All

Abstract

This article is about how privacy and piracy lock horns in everyday practice. It outlines three challenges right holders and ISPs face every day, when piracy tries to hide behind privacy: uncertainty, costs and delay.

Apart from only balancing the right of privacy against the right of (intellectual) property, the author also introduces a third element: the right to effective remedy.

The article concludes that the challenge is not in the ‘if’ but in the ‘when’ and ‘how’ ISPs can be obliged to disclose personal data. This requires new research, with a more practice-oriented approach, focusing on two elements: (1) a robust uniform decision making model, allowing for a ‘fair balance between all fundamental rights’, of all stake holders involved, (‘when’); (2) such model needs to benefit from (cost-)effective procedures, to the benefit of all (‘how’).

The article also discusses recent developments in the field of IP enforcement, including the decisions from the European Court of Justice in Promusicae, LSG and Bonnier Audio.

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Keywords: PRISM, piracy, privacy, IP, ISP, Promusicae, LSG, Bonnier Audio, data, intellectual property, Internet, Internet Service Providers, personal data, balancing, human rights, enforcement, Facebook, Google, Apple, effective remedy, freedom to conduct a business, Declaration of Human Rights, Tsoutsanis

JEL Classification: K00, K10, K13, K14, K19, K20, K29, K30, K33, K39, K40, K41, K42, K49, A12, D63, D74, E61, L50, L51