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European law is introducing a "three strikes and you're out" law for ISPs to disconnect illegal file sharers "under cover of stealth", according to legal experts. The EU's telecoms reform package could guarantee the legality of such schemes.

The content industry has lobbied to force internet service providers (ISPs) to disconnect users they suspect of engaging in copyright-infringing file-sharing after two warnings.

Digital rights activists have questioned the accuracy of the evidence gathered by industry against individuals and have said that the effects on a whole household of one user's actions are disproportionate.

Sheffield University professor of internet law Lilian Edwards and student Simon Bradshaw have analysed the documents that make up EU proposals for telecoms reform and have discovered that proposed new EU laws could pave the way for 'three strikes' schemes against the wishes of the European Parliament.

"This is a crucial set of obligations, about to be imposed on all of Europe’s ISPs and telcos, which should be debated in the open, not passed under cover of stealth in the context of a vast and incomprehensible package of telecoms regulation," they said in a report. "It seems, on careful legal examination by independent experts, more than possible that such a deliberate stealth exercise is indeed going on."

"When passed, these obligations will provide Europe-level authority for France’s current '3 strikes' legislation, even though this has already been denounced as against fundamental rights by the European Parliament, when it was made clear to them what they were voting for or against," they said.

The UK's six major ISPs have agreed a 'memorandum of understanding' (MoU) with the music and film industries by which they will write to 1,000 alleged illegal file-sharers a week in a trial to see if the action reduces copyright infringement.

The agreement stops short of disconnection, and the Government has said that if the ISP and content industries cannot agree a deal, it may legislate on disconnection for offending users. France is in the process of creating such a law.

The European Commission has proposed a series of telecoms reforms which have been modified both by the European Parliament and the EU's Council of Ministers. If the Commission, Council of Ministers and Parliament can agree on the Commission's current version of the laws then they could be passed by the end of the year, Edwards said.

The European Parliament blocked moves earlier this year to introduce EU rules about blocking internet access to illegal file sharers. Edwards said that the Parliament introduced blocks to the telecoms reform package as well, but that the two blocks were removed by the Council of Ministers, and one was reinstated by the Commission.

"In the latest revised Commission version, however, [one of the blocking amendments] is reinstated," said the paper (pdf). "It is accepted ‘in principle’ and is noted as providing a 'useful restatement of the need to ensure the balancing of fundamental rights'."

"This is definitely good news for those concerned about connection sanctions as it is one of the two key ‘safeguard provisions’. It is also a clear endorsement by the Commission of a key safeguard inserted by the Parliament and rejected by the Council of Ministers," it said.

Opponents of the three strikes rule the issue of illegal file sharing should be decided not by industry but by courts, and the evidence on which decisions are made independently examined.

"If this amendment is retained in the final version, it would make it highly dubious if an arrangement such as that contemplated in the UK MoU, where ISPs and rightholders between them might order disconnection, would be sufficient 'due process' and therefore legal."

Edwards' and Bradshaw's paper said that to read the proposed EU reforms in this way is to stretch the literal meaning of the documents, but that this has often happened in the past and could happen again.

"It has to be emphasised that such an interpretation would require extreme stretching of the words to enable particular interests; nonetheless, history provides many examples of legislation being used to ends outside its nominal purpose but within its literal meaning," it said. "Although EU legislation is mean to be interpreted purposively, this is of particular concern to countries, such as the UK, that have a history of transposing and interpreting EU legislation in a more traditionally literal manner."

Copyright © 2008, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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