The thorny issue of IP address retention and online copyright infringement: The Full Court shows the way in La Quadrature du Net and Others

Can internet service providers be required to retain IP addresses to facilitate the identification of internet users? In its first La Quadrature du Net ruling, from 2020, the ECJ seemed unequivocal: Member States may only impose such an obligation for the purpose of combating serious crime, preventing serious threats to public security or safeguarding of national security. In arguably one of its most fascinating judgments in recent years, the full Court of Justice has walked back this seemingly straightforward rule, which creates problems for the investigation into and prosecution of less serious criminal offences committed online. This paper discusses this second La Quadrature du Net ruling. First, it examines the ECJ's less than convincing attempt to persuade the reader that this rule was always more limited than it perhaps appeared, as well as the highly detailed and quasi-legislative conditions it sets for both the retention of and access to IP addresses. Second, it discusses some of the many questions that this judgment raises about the use of IP addresses in private enforcement. And third, it considers the problems of the CJEU's use of proportionality analysis in delineating the Member States' margin of appreciation in exercising the discretion granted to them in secondary legislation.