Internet provider Ziggo does not have to forward warning letters from Brein to its customers. This has been determined by the preliminary relief judge of the Central Netherlands District Court. Movies and books can be illegally downloaded and uploaded through BitTorrents platforms. In the Netherlands this is often done via an internet connection with Ziggo. Brain wants Ziggo to send a warning letter to those customers.
At the end of 2020, Brein started a warning campaign. Brein wants internet service providers to send a warning letter to their customers if Brein has established that the internet connection of those customers is being illegally downloaded and uploaded via BitTorrent. In that letter, the customer is informed that this behavior is punishable and harmful. Brein expects that this will cause people to voluntarily stop downloading and uploading illegally. The warning campaign is one of the many means that Brein uses to prevent infringements of the intellectual property rights of those who are affiliated with it. Brein knows through its own research which IP addresses are illegally downloaded and uploaded via BitTorrent, but it does not know which name and address details belong to those IP addresses. Only the provider that provides internet access knows that. Brein wants the relevant internet provider to link the IP addresses that have emerged from Brein’s research to the name and address details of the customers concerned and then send Brein’s warning letter to those customers. Most of the IP addresses from the survey belong to Ziggo customers. That is why it is important to Brein that Ziggo sends the warning letters. Ziggo does not want that, because it believes that this is contrary to the privacy rules and that there is no rule that obliges it to do so. Brein instituted summary proceedings to ensure that Ziggo still forwards the warning letters.
Ziggo can be obliged to forward the warning letters if this does not conflict with the privacy rules from the GDPR and if it acts unlawfully by not doing so. The preliminary relief judge has ruled that the IP addresses of which illegal uploading and downloading has been established are criminal personal data. This means that extra strict GDPR requirements apply. Brein and Ziggo are both controllers and therefore both must comply with all the rules of the GDPR. Brain complies. Not Ziggo. Ziggo needs a license from the Dutch Data Protection Authority. Ziggo can only link the IP addresses to the name and address details and forward the warning letters from Brein if it has that permit. Ziggo does not (yet) have that permit. Therefore, Brein’s claim cannot be allowed. In order to provide as much clarity as possible, the preliminary relief judge also assessed whether Ziggo would act unlawfully if it did have that license, but it still does not forward the warnings. That is the case.