Illegal downloading case appealed by data commissioner to Supreme Court


A CASE involving Eircom’s policy of cutting off the broadband connections of users found to have been illegally downloading music has been appealed to the Supreme Court.

The Data Protection Commissioner issued a notice last December ordering Eircom to cease implementing its so-called ‘three strikes and you’re out’ agreement with four music companies.

The policy, formally known as the graduated response protocol, was agreed with Eircom under a January 2009 settlement of court proceedings by the music companies against it.

It requires Eircom to issue three warnings to customers suspected of engaging in illegal downloading after which, if they persist, their broadband account is terminated.

Under the settlement, the companies were to supply Eircom with the unique internet protocol addresses of people suspected of illegal downloading.

The case was aimed largely at cutting off access to peer-to-peer music-sharing networks.

The four music companies secured a High Court order in June quashing the commissioner’s notice to Eircom telling it to cease the policy.

The commissioner’s solicitor, Philip Lee, lodged an appeal to the Supreme Court on Tuesday seeking a reversal of that High Court judgment by Mr Justice Peter Charleton.

Papers lodged with the Supreme Court set out 31 grounds of appeal.

These included that the lower court incorrectly held that the contract Eircom customers sign is sufficient to amount to consent to be subject to the ‘three strikes’ policy.

The commissioner is also asking the Supreme Court to refer certain questions to the European Court of Justice for preliminary ruling.

He is seeking its opinion on whether the Eircom policy is compatible with European law “having regard to the balance it strikes (or purports to strike) between the protection of the intellectual property rights enjoyed by the [record companies] and the fundamental rights of customers to protection of their personal information and the freedom to impart and receive information”.

The commissioner is seeking a reversal of the costs awards made in favour of the record companies and to Eircom, and is also seeking his own costs.

The proceedings followed the commissioner’s investigation in January 2011 into a complaint from an Eircom subscriber who had received a notice from the company under the ‘three strikes’ rule.

He insisted he had not been illegally downloading music.

Eircom subsequently carried out its own investigation and told the commissioner in February 2011 it had discovered, due to a “minor technical issue”, its notification to that subscriber and 390 others was incorrectly issued. It wrote to the affected customers to explain the error.

The Data Protection Commissioner’s office said it respectfully disagreed with the judgment of the High Court in June.

Deputy commissioner Gary Davis said the office considered there were important matters of privacy when using the internet that the Supreme Court should be asked to rule upon.

Eircom had no comment on the matter.