Music firms' challenge over 'three strikes' deal begins

A CHALLENGE by four music companies to a notice of the Data Protection Commissioner which they fear will effectively unwind their “three strikes and you’re out” agreement with Eircom aimed at combating the widespread illegal downloading of music has opened before the Commercial Court.

The companies have challenged the commissioner’s enforcement notice of December 5th last directing Eircom to stop implementing the three strikes agreement arising from his view that the agreement breached data protection and privacy laws.

The companies claim the notice is an unlawful and irrational attempt by the commissioner to reopen data protection issues already determined in their favour by the High Court.

The action, brought by EMI Records (Ireland) Ltd, Sony Music Entertainment Ireland Ltd, Universal Music Ireland Ltd and Warner Music Ireland Ltd, opened yesterday before Mr Justice Peter Charleton and is expected to last three days.

Michael McDowell SC, for the companies, argued that, in issuing the notice,  the commissioner had acted in excess of his powers, irrationally, disproportionately and in a manner prejudicial to the music firms’ interests. No reasons were given for his decision to issue a notice, counsel added.   The commissioner,  in his statement of opposition, has denied those claims.

The disputed notice was issued by the commissioner under the Data Protection Acts 1988 and 2003 and EC Privacy and Electronic Communications Regulations 2011 following his investigation into a complaint from an Eircom subscriber about receiving a notification under the three strikes agreement or Graduated Response Protocol.

That protocol, agreed with Eircom in January 2009 in settlement of the companies’ court action against it, requires Eircom to issue three warnings to persons suspected of engaging in illegal downloading after which, if they persist in illegal downloading, their broadband account is terminated.

Under the settlement, the companies were to supply Eircom with internet protocol addresses of those suspected of illegal downloading. The case was largely aimed at cutting off access to peer-to-peer music-sharing groups.

In 2011, the commissioner notified Eircom that he intended to investigate a complaint against it by a subscriber who had received a notification under the protocol and who claimed it amounted to a breach of their privacy rights.

On foot of that complaint, made by a person who said they were not involved in any illegal downloading, the commissioner informed Eircom he believed the three strikes protocol contravened provisions of the Data Protection Acts and 2011 regulations and he set out a proposed enforcement notice.   He also said a European Court of Justice decision that day made clear the protocol was unlawful under European law. Eircom responded the judgment appeared of little relevance.