The Commercial Court has quashed an enforcement notice issued by the Data Protection Commissioner (DPC) directing eircom to cease operating its “three strikes” policy. This is the latest round in the on-going battle being fought by representatives of the music industry to combat Internet piracy (see our previous articles here, here, here and here).

Under the “three strikes” policy, the Irish Recorded Music Association (IRMA) brings to eircom’s attention the IP address of each alleged copyright infringer using eircom’s Internet service. Then eircom matches this IP address to a customer account and follow a graduated response procedure. It ranges from a warning, to temporary suspension of the service and eventual disconnection of the customer from eircom’s Internet service.

The DPC issued an enforcement notice in December 2011 directing eircom to cease operating this policy, claiming that its use of IP addresses was infringing data protection and privacy legislation. The recording companies then brought proceedings in the Commercial Court to challenge the validity of the enforcement notice.

The Court found that the policy did not give rise to any breaches of privacy or data protection laws. In an earlier judgment, it was held that there was no disclosure of personal data because the recording companies could not reasonably discover the customers’ identities through their IP addresses. Further, the Court noted that the DPC had not complied with his statutory obligation to set out the reasons for issuing an enforcement notice.  Insofar as any reasons could be ascertained from the notice, they were found by the Court to be based on a misconstruction of the relevant law.

The case raises the possibility that recording companies may be permitted to impose even more onerous obligations on Internet service providers in relation to monitoring allegedly illegal activity, the boundaries of which are hopelessly unclear.  In the absence of legislation setting parameters to guide Internet service providers, these boundaries are likely to be tested and contested in future cases.

Contributed by David Cullen and John Farrell.