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Three strikes and you're out on downloads

A JUDGE has quashed a notice issued by the Data Protection Commissioner directing Eircom to stop implementing an agreement with four music companies aimed at combating illegal downloading.

EMI Records (Ireland) Ltd, Sony Music Entertainment Ireland Ltd, Universal Music Ireland Ltd and Warner Music Ireland Ltd challenged the Commissioner's enforcement notice of December 5, 2011.

Under the agreement, Eircom subscribers would lose their internet access for a week after three copyright infringements and altogether after four breaches.

The Commissioner issued the notice arising from his view the agreement breached data protection and privacy laws.

The companies claimed in the Commercial Court the notice would effectively unwind their agreement with Eircom.

Mr Justice Peter Charleton quashed the enforcement notice after finding it was invalid arising out of the failure by the Commissioner to give reasons why it had been issued.

Mr Justice Charleton said the reasons which appeared to underpin the notice "involved a misconstruction of the relevant law".


In their proceedings, the companies argued 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 his decision to issue a notice, and it was an unlawful and irrational attempt by the Commissioner to again open data protection issues already determined in their favour by the High Court, they further claimed. The Commissioner denied those claims.

The disputed notice was issued by the Commissioner 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 was agreed with Eircom in January 2009 and requires Eircom to issue three warnings to persons suspected of engaging in illegal downloading. If they persist in illegal downloading after the third strike, 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.

The Commissioner said a European Court of Justice ruling made clear the protocol was unlawful under European law.