High Court Approves File Sharing Settlement - ISP Addresses not Personal Data
The High Court, in a reserved judgement delivered by Mr Justice Charleton on 16th April, has sanctioned the “three strikes” regime previously agreed between Eircom and the record industry, by holding that terminating internet accounts of persons suspected of illegally sharing music does not entail a breach of data protection laws or human rights. This is a landmark ruling by the Irish courts as it represents one of the first successful attempts by the record industry in Europe to implement a three strikes regime by way of legal proceedings, rather than through the legislative process.
As previously reported, Eircom and the record companies signed a settlement agreement in January 2009 designed to prevent Eircom subscribers from using the Internet for the purpose of illegal filesharing. Under the agreement, the record companies notify Eircom of IP addresses which they believe are being used for illegal downloading, Eircom sends warnings to the relevant subscriber, and ultimately terminates the subscriber’s account if the warnings are not heeded. The agreement did not entail any requirement on the part of Eircom to disclose the identity of its subscribers to the record companies.
The Data Protection Commissioner (DPC) raised a number of concerns about the three strike regime, which resulted in the parties seeking a ruling from the High Court.
- The first question addressed was whether IP addresses constitute ‘personal data’ within the meaning of the Data Protection Acts 1988-2003. Mr Justice Charleton held that an IP address was not personal data as it did not identify a living individual and he saw no likelihood arising that Eircom would disclose the identity of its subscribers to the record companies.
- The second question addressed was whether terminating access to an internet account was a breach of the fundamental rights and freedoms of the subscriber. Mr Justice Charleton found that it did not: “I find it impossible to imagine that such interference is unwarranted because there is some fundamental right or freedom or legitimate interest in the data subject whereby, in contrast to those who engage in other forms of unlawful copyright theft which may leave them more readily subject to the law, the internet is used for the violation. There cannot be a right to infringe the constitutional rights of others, absent some argument as to a genuine and compelling competing right”.
- The final question addressed was whether the “three strike” regime involved the processing of “sensitive” personal data. The judge found that it did not, as the termination of an account did not implicate the commission of a criminal offence.
Interestingly, today's Irish Times (24 May) reports that Eircom will begin the process of cutting off the broadband service of customers deemed to be continually sharing music online illegally from today. Eircom will initially telephone infringing customers to ask if they know that the illegal activity is occurring on their broadband network. Repeat offenders will have their service withdrawn for seven days if they are identified a third time, or for a year if they are identified for a fourth time.
