Music companies fight bar on pirate punishment

Four music companies are challenging the Data Protection Commissioner’s order to stop them unwinding their “three strikes and you’re out” agreement with Eircom aimed at combating the illegal downloading of music.

The companies have challenged the commissioner’s notice of Dec 5 directing Eircom to stop implementing the three strikes, 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 re-open 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 — is before Mr Justice Peter Charleton and is expected to last three days.

Michael McDowell SC, for the companies, argued that the commissioner 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 said.

The commissioner has denied those claims.

The notice was issued under the Data Protection Acts 1988 and 2003 and EC Privacy and Electronic Communications Regulations 2011, following the commissioner’s investigation into a complaint from an Eircom subscriber about receiving a notification under the three strikes agreement.

This graduated response protocol, agreed with Eircom in Jan 2009 in settlement of the companies’ action against it, requires Eircom to issue three warnings to persons suspected of engaging in illegally downloading after which, if they persist, their broadband account is terminated.

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

In 2011, the data commissioner notified Eircom 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 illegal downloading, the commissioner told Eircom he believed the protocol contravened 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.

Last December, the commissioner issued the notice directing Eircom to take all necessary steps within 60 days to comply with the data acts, to cease obtaining subscriber data so as to operate the protocol, and to destroy any subscriber data processed by it for the purposes of the protocol.

The music companies said they and Eircom understood from that notice the commissioner’s view was that continued implementation of the three strikes would breach the Data Protection Acts and 2011 regulations.

Given the settlement of the earlier proceedings and the later High Court decision on the data protection issues raised, the commissioner had acted in excess of his powers, they claim.


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