Thursday 23 November 2017

Supreme Court backs 'three strikes' deal to fight illegal downloading

THE Supreme Court has backed a “three strikes and you’re out” agreement aimed at combating illegal downloading of music and other material from the internet.

The court upheld a challenge by four music companies to a notice of the Data Protection Commissioner which they feared would effectively unwind that agreement with Eircom.


The companies challenged the commissioner’s enforcement notice of December 5, 2011, directing Eircom to stop implementing the three strikes protocol whereby users are warned three times to desist from illegal downloading before their service is terminated.


The commissioner argued the protocol breached data protection and privacy laws.  However, the companies argued this amounted to an unlawful and irrational attempt to reopen data protection issues already determined in their favour by the High Court.


In a High Court judgment of June 2012, Mr Justice Peter Charleton ruled as invalid the enforcement notice due to its failure to include any reasons specifying what provisions of the Data Protection Acts had been contravened by the protocol.


The Supreme Court today unanimously dismissed an appeal by the data commissioner against the High Court decision.


Giving judgment on behalf of the three-judge court, Mr Justice Frank Clarke said significant and important questions relating to music piracy and intellectual property rights lay at the heart of the appeal. Those issues could be summarised into the question whether the protocol, the product of a private contractual arrangement, could legitimately result in a subscriber to an internet service provider having their broadband terminated.


However, the specific questions the Supreme Court had to answer were much narrower, he said. These were whether the trial judge had correctly quashed the notice on the basis of absence of reasons and whether judicial review was appropriate in this matter.


He found the trial judge correctly concluded there was "a complete absence of reasons" and therefore, the notice was unlawful and made in breach of Section 10.4 of the Data Protection Acts.


It was particularly important Section 10 required such a notice to specify the reasons for the Commissioner having formed an opinion there has been a breach of data protection laws, he said.


He was not convinced, as argued on behalf of the Commissioner, the reasons for the notice were obvious from the process engaged in.

Legal certainty requires the reasons can be determined "with some reasonable measure of precision", he said.


On the evidence and materials available, it was not inherently obvious why the protocol would involve a breach of date protection law, he added. The protocol, he noted, worked via Eircom getting internet protocol (IP) addresses of suspected illegal downloaders from the record companies, writing an appropriate letter to the customer involved and invoking suspension or termination provisions as appropriate.


The proceedings were taken by EMI Records (Ireland), Sony Music Entertainment Ireland, Universal Music Ireland and Warner Music Ireland.


The enforcement notice was issued following the Commissioner's investigation into a complaint from an Eircom subscriber about receiving a notification under the three strikes protocol,  agreed with Eircom under a January 2009 settlement of court actions by the companies against it.

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