It has been reported that the Data Protection Commissioner (the “Commissioner”) is investigating the eircom/IRMA three strikes rule after the sending of hundreds of letters falsely accusing eircom customers of copyright infringement.
In total, three hundred customers were sent ‘”first strike” warning letters despite there being no grounds for such contact. eircom, Ireland’s largest internet service provider, admitted that a “limited number” of letters were issued following a software failure caused by the changing of the clocks in October.
What appears to have been a very basic technical fault has led to debate about the implementation of the three strikes rule in Ireland, and has the potential to undermine the legality of the rule in its entirety. Indeed the Commissioner has suggested that investigation will include the examination of the “proportionality of the graduated response system operated by eircom and the music industry”.
eircom is the only internet service provider in Ireland to implement a three strikes policy in respect of customers engaging in illegal filesharing. In fact, eircom has continued to implement the policy despite doubts following the UPC decision, where Mr. Justice Peter Charleton in the High Court determined that there was no legal basis to require UPC to enter into a similar arrangement as Ireland had not fully implemented EU directives on copyright protection.
At the time of the formulation of the three strikes rule the Commissioner identified significant data protection concerns surrounding its implementation. He was however unable to take further action until a complaint arose as he was not party to the proceedings. Now that a formal complaint has been lodged it seems likely the Commissioner will adhere to his pervious views that using IP addresses to interrupt users’ internet connections is disproportionate and does not constitute “fair use” of personal information. If this is the case, the Commissioner has the power to issue an enforcement order which may return the matter to the courts once more.
In our earlier article, we noted that it is likely that legislation will have to be enacted in order to introduce a mechanism to require internet service providers to block or divert traffic between internet users who engage in illegal downloading. Over the last few days a consultation process has begun on a new statutory instrument to seek to address such issues. We will report shortly on this so please check back to our news section for further information.
Contributed by Leo Moore.
