LEGAL OPINION:THE CONTROVERSY surrounding the Statutory Instrument (SI) just passed and introduced by Minister of State for Enterprise Seán Sherlock TD has raised questions surrounding its purpose. The internet forum boards.ie has initiated a process whereby its members can contact their public representatives to raise concerns about the proposed SI. The results have varied from lack of response, to pro forma replies and, from some representatives, a complete lack of knowledge on the subject.
Many of the replies have stated the Minister is merely attempting to properly implement EU law. For example, Paschal Donohoe TD stated that “ne argument that has been put forward by those opposed to this proposal relates to a change in policy. Nothing could be further from the truth, as it had been the intention of the Copyright Related Rights Act 2000 to provide civil remedies like injunctions. However, the High Court found that this was not the case in EMI Ireland others v UPC in October 2010. Therefore, the wording put forward by Minister Sherlock in the proposed Statutory Instrument has been framed in such a way that merely gives effect to the wording of the EU Copyright Directive and not extending its scope beyond that of intermediaries. “This is now a pressing issue for the State in light of proceedings issued this year against the State for failure to implement these measures properly”. (EMI Records (Ireland) Ors. v Ireland Ors.)
This adopts an overly simplistic view of the thrust and possible repercussions of the proposed Statutory Instrument. There are three basic reasons why this proposed SI is not fit for its purpose: the wording is far too vague; the types of injunctions foreseen or requested by EMI and others are no longer available in light of European Court judgments; and SI is not the appropriate way to legislate these changes. I will consider the first two points, as the third has been the subject of many articles in the previous weeks and, frankly, is rather irrelevant when one considers the stated purpose of this SI is moot.
The dangers of vague wording are often overlooked without malice or pressure from outside groups. The proposed wording of the Minister’s SI, although purported only to give effect to the wording of the EU Copyright Directive, goes much further in that it allows an apparent open-ended discretion for the courts to grant the same injunctive reliefs sought and refused in EMI v UPC – that is, forcing ISPs to implement filtering or blocking systems and/or implementing a graduated response system (commonly called a “three strikes rule”). That leads neatly into the second reason, that these remedies are no longer available to companies like EMI.
In light of the European Court of Justice’s (ECJ) ruling in Scarlet Extended SA v SABAM, it is clear that the type of filtering or blocking mechanism proposed by the plaintiff in EMI v UPC and envisioned by the Minister in his SI is contrary to European Law.
Simply put, the result of Scarlet Extended SA v SABAM is that where a national court granted an injunction requiring an ISP to install a filtering system which would require the ISP to monitor all traffic through their network, such an order would not be one which the ECJ accepted would represent a fair balance being struck between “the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the right to receive or impart information, on the other. EU law precludes an injunction made against an internet service provider requiring it to install a system for filtering all electronic communications passing via its services which applies indiscriminately to all its customers, as a preventive measure, exclusively at its expense, and for an unlimited period.” (Curia press release No. 126/11).
Even if one puts the concept of a “three strikes” policy on the back-burner, it is clear that the ruling in Scarlet Extended shows that the basic principle required to force such a filtering, blocking or monitoring system on the ISP is contrary to European Law. So the question must be posed to the Minister, what exactly does your SI allow the courts to do?
Oisin ONeill is a barrister practising in intellectual property law