The High Court has ruled that eircom, Ireland’s largest Internet Service Provide (ISP), can operate a “three strikes” procedure, ultimately leading to the termination of internet access where copyright infringement had occurred.
Over a year ago, eircom, in response to proceedings issued by the Irish Recorded Music Association (IRMA), which represents EMI, Sony, Universal and Warner, announced that it was implementing a “three strikes” rule in order to withdraw internet access from anyone who downloaded music illegally after the third offence. The rule was part of a settlement of these proceedings.
After agreeing the settlement, the parties contacted the Data Protection Commissioner about the disclosure of IP addresses and the Commissioner expressed concern that the Data Protection Acts would be infringed by the terms of the settlement, as it considered that it involved the disclosure of sensitive personal data. The matter was therefore referred back to the Court to clarify the data protection issues. The Data Protection Commissioner was not represented in the proceedings.
The Court confirmed that the proposed operation of the “three strikes” rule did not breach data protection legislation, thereby allowing the parties to proceed to implement the settlement.
The issue to be decided by the Court was whether the rule was objectionable on data protection grounds. As part of the settlement agreement between eircom and the record labels, the record labels would run software to identify when file-sharing was taking place in relation to files in which they claimed copyright, where one of the parties involved was operating from an IP address registered to eircom. The record labels would then notify eircom of the alleged infringement, whereby eircom would implement its “three strikes” procedure. The next step would be that eircom to notify the alleged offender that there was believed to be copyright infringement. If there were to be a second infringement, eircom was obliged to write to the infringing party warning that if the infringement continued, internet access would be disconnected. On the third notification of infringement to eircom, the subscriber’s internet access was liable to be terminated. Extenuating circumstances, such as the necessity of internet access for medical services, must be considered by eircom prior to termination.
The Data Protection Commissioner raised three issues:
- whether the collecting, processing and sharing of the IP addresses, including the provision of such data from one private entity to another private entity, should be regarded as processing of “personal data”;
- whether the settlement furthers any legitimate interest pursued by eircom and thereby asserts a possible conflict with the fundamental rights and freedoms of data subjects; and
- whether the processing by eircom, through warning and ultimately through cutting internet access, involves processing of “sensitive personal data”.
The Court decided that the concerns raised by the Data Protection Commissioner did not prevent the rule being implemented as it was both lawful and compatible with the Data Protection Acts 1988 and 2003. As the record companies had no interest in personally identifying the copyright infringers, the Court ruled that IP addresses of suspected illegal downloaders in the possession of record companies would neither constitute “personal data” nor “sensitive personal data”.
The record labels alleged that illegal downloading is costing the entertainment industry up to €14 million a year in lost revenue and that any invasion of privacy through the sharing of IP addresses is outweighed by the evidence of copyright infringement. The Court noted that there was nothing disproportionate about the “three strikes” approach and that there were sufficient safeguards in the protocol agreed by the parties.
Furthermore, there was nothing in either criminal or civil law which legalises that which is otherwise illegal, simply because the transaction takes place over the internet. The internet is only a means of communication and has not rewritten the legal rules of each nation it passes through. Mr Justice Charleton saw the exclusive right of copyright owners as being “flagrantly violated” by peer to peer illegal downloading and in those circumstances it was within the legitimate interests of eircom to act as a body which upholds the law and to do so by means of the “three strikes” procedure did not amount to unwarranted processing of personal data. The graduated response was lawful and the parties could therefore proceed to implement the settlement.
The ruling will have implications for other Internet Service Providers as it will allow the IRMA to put pressure on them to follow eircom’s lead and cut off services to offenders who illegally download music, without heeding warnings to desist. Indeed, on 17 June 2010, similar proceedings opened against UPC Communications Ireland Limited, which is opposing the imposition of the “three strikes” proposal as it does not take into account the rights and interests of subscribers or the company itself.
IRMA has also filed a plenary summons against O2 and 3 Ireland in an effort to force them to implement a system with them similar to that now in place with eircom and is in negotiations with Vodafone and Meteor, eircom’s largest subsidiary, on the same basis.
Interesting times lie ahead for the industry as a whole. In the meantime, anyone intending to engage in illegal downloading would be minded to have regard to the fundamental right to copyright in Irish law. This right has existed since the time of Saint Colmcille, whose opinion on the matter is quoted by Mr Justice Charlton as, ‘to each cow its calf and to every book its copy’ or indeed its modern day equivalent, ‘to every rapper, his rap’.
