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Music companies claim Data Protection Commissioner is 'unwinding agreement'

FOUR music companies claim the Data Protection Commissioner is attempting to unwind an agreement with Eircom aimed at combating illegal music downloading.

Under the agreement, illegal downloaders are to be warned three times to cease their activities or face losing their internet service - referred to as a "three strikes and you're out" protocol.

In proceedings which have commenced in the Commercial Court, Mr Justice Peter Charleton has been told Commissioner's enforcement notice of December 5 last directing Eircom to stop implementing the three strikes agreement amounts to an unlawful and irrational attempt by the Commissioner to re-open data protection issues already determined in their favour by the High Court.

The action against the Commissioner has been brought by EMI Records

(Ireland) Ltd, Sony Music Entertainment Ireland Ltd, Universal Music Ireland Ltd and Warner Music Ireland Ltd is aimed at quashing that notice.

Yesterday, Michael McDowell SC for the companies said that by issuing the notice the Commissioner had acted in excess of his powers, irrationally, disproportionately and in a manner prejudicial to the music firm's interests. No reasons were given for the his decision to issue a notice, counsel added.

The Commissioner in its statement of opposition has denied the claims and has rejected that the notice amounts to a breach of his jurisdiction.

The disputed notice was issued by the Commissioner under the Data Protection Acts 1988 and 2003 and EC Privacy and Electronic Communications Regulations 2011 following his investigation into a complaint from an Eircom subscriber about receiving a notification under the three strikes agreement or Graduated Response Protocol.

That protocol, agreed with Eircom in January 2009 in settlement of the companies court action against it, requires Eircom to issue three warnings to persons suspected of engaging in illegal downloading after which, if they persist in illegal downloading, their broadband account is terminated.

Under the settlement, the companies were to supply Eircom with Internet Protocol addresses of those suspected of illegal downloading.

The case was largely aimed at cutting off access to peer-to-peer music sharing groups.

In 2011, the Commissioner notified Eircom he intended to investigate a complaint against it by a subscriber who had received a notification under the Protocol. This it was claimed amounted to a breach of their privacy rights.

The Commissioner on foot of that complaint, made by a person who said they were not involved in any illegal downloading, informed Eircom he believed the three strikes protocol contravened provisions of the Data Protection Acts and 2011 regulations and set out a proposed enforcement notice.

He also said a European Court of Justice decision that day made clear the protocol was unlawful under European law. Eircom responded that the judgment appeared of little relevance.

Last December the Commissioner issued the enforcement notice directing Eircom take all necessary steps within 60 days to comply with the data acts, to cease obtaining subscriber data so as to operate the protocol and to destroy any subscriber data processed by it for the purposes of the protocol.

The music companies said both they and Eircom understood from that notice that the Commissioner's view was that continued implementation of the three strikes protocol would breach the Data Protection Acts and

2011 regulations.

Given the settlement of the earlier proceedings and the later High Court decision on the data protection issues raised, the Commissioner had acted in excess of his powers they claim. The action, which is expected to last three days, continues.