Irish 3-strikes could land in European Court

The Irish Data Protection commissioner has put a shot across the bows of the music industry, in a move that may end up in the European court of justice. The case follows a complaint from an Internet subscriber on the Eircom network. The complaint has resulted in a legal wrangle with the big four music (yes, EMI is still counted) labels. The case has many twists and turns, but in this latest development, the Data Protection Commissioner filed an appeal last week in the Dublin Supreme Court. The appeal

incorporated questions that he would like the Dublin court to refer to the ECJ.

The case concerns the Irish 3-strikes system, also known as the Eircom graduated response protocol. The Eircom protocol is a private agreement between the network provider Eircom, and the music industry companies. It requires Eircom to implement a 3-strikes sytem taking copyright infringement allegations directly from the music companies, forwarding notices and implementing sanctions. The agreement arose from a court case filed by the music companies. It was reached as an out-of-court settlement in 2009. Hence, it could be classified as a 'voluntary' agreement. It's voluntary because there is no court order governing it, and no means of auditing or regulating it.

Last December, the Data Protection Commissioner issued a notice ordering Eircom to stop. Technically, the notice asks Eircom to cease processing customer data for the purpose of the 3-strikes system.

The Data Protection Commissioner's grounds relate to the non-compliance with data protection law.

The music companies filed a challenge to the Data Protection Commissioner's notice in the high court, and June this year they won a quashing order. That means, the Data Protection commissioner's notice is suppressed and Eircom can continue to operate the 3-strikes system.

It's this quashing order that the Data Protection Commissioner is appealing. According to an article in the Irish Times, the Commissioner has filed 31 grounds for appeal.

Interestingly, one of those 31 grounds is that " that the lower court incorrectly held that the contract Eircom customers sign is sufficient to amount to consent to be subject to the 'three strikes' policy."

Of course, it may depend what the contract says. Readers who followed the Telecoms Package will know about the important of the contract under transparency rules.

The Irish Times cites one of the questions that may be referred to the ECJ. The question is whether the Eircom policy is compatible with European law:

"having regard to the balance it strikes (or purports to strike) between the protection of the intellectual property rights enjoyed by the [record companies] and the fundamental rights of customers to protection of their personal information and the freedom to impart and receive information".

Now this reminds me of the Promusicae v Telefonica case. The Promusicae case also addressed the issue of data protection/right to privacy and copyright infringement, although the situation involved in the case was different. However, some text from ruling ended up in the Telecoms Package

" when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality."

The rights-holders seemed to think it was important, so important they wanted it in the law. I have been advised that it can be interpreted two ways, not necessarily in their favour. Maybe that is so.

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If you want to know how the Promusicae text got into the Telecoms Package, see my book: The Copyright Enforcement Enigma Internet politics and the Telecoms Package.

This is an original article from Iptegrity.com. You may re-publish it under a Creative Commons licence, but you should cite my name and provide a link back to iptegrity.com. Media and Academics - please cite asMonica Horten, Irish 3-strikes could land in European Court www.iptegrity.com, 6 August 2012 . Commercial users - please contact me