A KEY High Court decision yesterday allowing Eircom to proceed with cutting off internet access to illegal music downloaders, mainly peer-to-peer music sharing groups, has major implications for internet service providers (ISPs).
Legal sources predict the judgment by Mr Justice Peter Charleton may compel other ISPs to cut off services to illegal downloaders who fail to heed warnings to desist from what the judge called “theft”.
The judgment arose from a settlement last year of proceedings by four record companies – EMI, Sony, Universal and Warner – against Eircom over use by others of its services for illegal downloading. Other cases are pending.
Under the settlement, Eircom agreed to implement measures aimed at stopping illegal downloading, including disclosing to the companies the uploaders’ and downloaders’ identities through their IP addresses, and cutting them off if the downloading persisted.
There was nothing in criminal or civil law legalising that which is otherwise illegal because a transaction takes place over the internet, Mr Justice Charleton said.
While removal of internet access over illegal downloading was a serious sanction, there was “no freedom to break the law”.
The courts were required to supply appropriate remedies for undermining of rights within the scheme of fundamental law and were obliged to protect rights of copyright owners from attack.
It was completely within Eircom’s legitimate interests to act as a body which upholds the law.
There was nothing disproportionate about cutting off internet access because of three infringements of copyright as proposed by Eircom and the music companies. There were also adequate personal safeguards in the protocol agreed by the parties.
The companies and Eircom propose a “three strikes and you’re out” protocol for dealing with illegal downloaders, under which Eircom will first give notice to the downloaders their activity is illegal and should be stopped. If it continues, they will be warned they risk having their broadband slowed down. If infringement continued, they would be cut off.
The Data Protection Commissioner had expressed the view the Data Protection Act was an obstacle to implementation of the measures as these involved the release of “sensitive personal” information. The commissioner’s concerns related to whether the process leading up to termination amounted to an interference with subscribers’ personal rights.
The sides asked the High Court to rule on those issues. The commissioner did not participate due to concerns over legal costs.
Yesterday, Mr Justice Charleton ruled that IP addresses of suspected illegal downloaders in the possession of the record companies who intend to give them to Eircom are not “personal data” or sensitive personal data such as required the companies to comply with data protection issues.
He ruled Eircom’s processing of data of suspected illegal downloaders, as proposed, did not amount to “unwarranted” processing on grounds it prejudiced the fundamental rights and freedoms or legitimate interests of the subscriber.
It was open to the music companies and/or Eircom to implement the three-step process set out in the terms of settlement, including termination of an internet user’s subscription, he ruled.
