Ireland’s largest ISP, Eircom, can continue enforcing its ‘three-strike’ warning system for illegal downloading after the High Court overturned an order banning the scheme.
Mr Justice Peter Charleton invalidated a ruling by the Data Protection Commissioner (DPC), which had blocked the ‘graduated response’ system in January 2012. In his decision of June 27, 2012, the judge said the DPC had “failed” to give reasons for its decision.
Under the policy, agreed in 2009 with record labels EMI, Sony, Universal and Warner, Eircom could terminate subscribers’ Internet connections for one week, each time they received a ‘strike’. If they broke the rules after a third warning, subscribers would lose their Internet access entirely.
But in October 2010, Eircom failed to set its clocks back by one hour following a switch to British Winter Time. This “indolence”, as the judge called it, led Eircom wrongly to notify some 391 subscribers about illegal downloading.
In January 2011, one of those subscribers complained to the DPC, claiming Eircom had breached data protection and privacy laws. In January the following year, the DPC terminated the three-strike system.
The record labels challenged this enforcement notice in the Irish courts, saying the DPC had disabled their ‘lawful’ agreement with Eircom. But quashing the DPC’s ruling, Justice Charleton said it had failed to “give reasons” and had misconstrued the relevant law.
However, it was surprising that none of the parties had challenged the DPC’s ruling in the Court of Justice of the European Union (CJEU), said Gerard Kelly, associate at law firm Matheson Ormsby Prentice in Dublin. He said the court could have opined on whether the blocking system complies with data protection and privacy laws. “One can only surmise that the recording companies were not motivated to do so as it was not necessary as a means to an end,” he said.
He added that while the blocking system can re-open, the judgment does not address whether a court can order such a scheme to be implemented if ISPs do not adopt it voluntarily. “That issue may yet come up for determination,” he said. “Mr Justice Charleton expressly stated that he was not required to opine on the issue of recourse to a judicial process, something which under relevant EU telecoms framework legislation may be required of a graduated response system.
This article was first published on 18 July 2012 in World IP Review
Eircom, DPC, three strikes, online piracy, music