Three Strikes and You're Out! - A Change of Heart?
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You may recall that in January of last year Eircom agreed to implement a “three strikes and you’re out” policy as part of an out of court settlement with IRMA. Eircom agreed to work with the “Big Four” music labels in Ireland – Universal, Warner, Sony and EMI – to help them pursue illegal downloaders and uploaders. Under the system Eircom customers downloading music from peer-to-peer services were to receive two warnings after which they would be disconnected if they continued to engage in the activity. The settlement agreement set a precedent and it was expected that all other ISPs in the Irish market would be compelled to follow suit.
However, recent developments at home and in Europe now call into question the effectiveness of the agreement.
Eircom and IRMA have requested the High Court to rule on whether implementing the “three strikes” rule contravenes data protection law. A negative ruling by the High Court is likely to make the enforcement of the agreement very difficult.
Further afield, in May 2009, the French Parliament passed legislation that introduced measures to combat music piracy, including a “three strikes” regime for persistent copyright infringers that would result in the perpetrator losing their internet connection. However, the French Constitutional Court subsequently held the provision to be unconstitutional. The court held that the legislation went directly against a decision in the European Parliament, whereby disconnecting alleged copyright infringers would violate the fundamental rights and freedoms of internet users.
More recently, the EU has adopted a telecoms directive that guarantees citizen access to the Internet and which requires due process and effective judicial protection for persons whose access to the Internet is denied. Commissioner Viviane Reading has stated that “Three-strikes-laws, which could cut off internet access without a prior fair and impartial procedure or without effective and timely judicial review, will certainly not become part of European law”.
These developments pose seriousness challenges to the three strikes regime agreed between IRMA and Eircom.
