Eircom Case - Future of Illegal Downloads in Ireland

A recent case in the Irish High Court has displayed that Ireland is leading the way in combating illegal file-sharing. In a move that is likely to be replicated, or at the very least prove influential, across regulated countries record labels are beginning to make some progress in the battle against music piracy. For the purposes of shedding some light on the High Court's decision in this matter I have examined some of the main issues and likely consequences for those who fall foul of the this new legal approach.

Eircom customers consider yourselves hereby warned.

On 28 January 2009 the terms of a settlement between EMI, Universal, Sony, Warner and Eircom was set down in writing and filed in court.

The Data Protection Commissioner in turn raised three issues as to why the settlement might be doubted to conform with data protection legislation.

Under the terms of the settlement the parties agreed to implement a three stage procedure. Firstly, internet users involved in illegal downloading will be contacted and requested to desist, another warning will issue on a second infringement. When a third infringement is notified to Eircom, a review of all evidence must be conducted, and a termination notice will then be issued. The customer is at this stage entitled to make representations to Eircom as to their situation.

The Issues Raised

Issue 1

Do data comprising IP addresses, in the hands of EMI or its agent(s) constitute “personal data” for the purposes of the Data Protection Acts 1988-2003?

The court ruled that IP addresses alone are not to be considered as personal data. The court noted that in order for the IP addresses and other information obtained by the plaintiffs to constitute personal data, it must be probable that further information might come into their possession which would identify the individual end users.

Issue 2

Does the processing by Eircom of “personal data” in the context of the third of the three steps envisaged under the terms of the settlement (i.e. the termination of an internet user’s subscription) represent unwarranted [processing] by reasons of prejudice to the fundamental rights and freedoms or legitimate interests of the data subject?

Justice Charleton approached this issue by reference to the principle of proportionality and a balancing of the right of an owner of copyright to have the fruits of their labour protected versus any right which an internet user might have to access the internet and not to have that access terminated.

The court’s ruling on this issue effectively places the protection of copyright ahead of the right of an internet user to access the internet and consequently not to have that access terminated.

The second question was, therefore, answered in the negative.

Issue 3

Whether it is open to EMI and/or Eircom to implement the 3 step process set out in the settlement including, in particular, the termination of an internet user’s subscription under step 3 of that process, in circumstances where the termination of an internet user’s subscription by Eircom would be predicated on the internet user in question having committed an offence but without any such offence having been the subject of investigation by an authorised body; and, further, without any determination having been made by a court of competent jurisdiction.

The judge opined that the parties to the settlement were concerned only with the civil side of copyright infringement, and as such that a mental element of knowing or having reason to believe that one is dealing with an infringing copy of the work was not required to be proved. Justice Charleton answered the third question in the positive, specifically that the graduated response process agreed by the parties was indeed lawful.

Overall, a high degree of power to stop illegal file-sharing has been given to the four major record labels. Already a number of Eircom customers have received warnings and word is that others have had their connection severed after ignoring the warning letters received from Eircom. Similar court cases are due against the other Internet Service Providers operating in this country. The likes of NTL have vowed to fight the labels harder than Eircom and this will really clarify the future of file-sharing in Ireland.