Feeds

Academics warn of EU 'three strikes' back door plan

Disconnection looms

The essential guide to IT transformation

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.

Secure remote control for conventional and virtual desktops

More from The Register

next story
'Stop dissing Google or quit': OK, I quit, says Code Club co-founder
And now a message from our sponsors: 'STFU or else'
Top beak: UK privacy law may be reconsidered because of social media
Rise of Twitter etc creates 'enormous challenges'
Ex US cybersecurity czar guilty in child sex abuse website case
Health and Human Services IT security chief headed online to share vile images
Uber, Lyft and cutting corners: The true face of the Sharing Economy
Casual labour and tired ideas = not really web-tastic
Don't even THINK about copyright violation, says Indian state
Pre-emptive arrest for pirates in Karnataka
The police are WRONG: Watching YouTube videos is NOT illegal
And our man Corfield is pretty bloody cross about it
Oz biz regulator discovers shared servers in EPIC FACEPALM
'Not aware' that one IP can hold more than one Website
Apple tried to get a ban on Galaxy, judge said: NO, NO, NO
Judge Koh refuses Samsung ban for the third time
prev story

Whitepapers

Top 10 endpoint backup mistakes
Avoid the ten endpoint backup mistakes to ensure that your critical corporate data is protected and end user productivity is improved.
Implementing global e-invoicing with guaranteed legal certainty
Explaining the role local tax compliance plays in successful supply chain management and e-business and how leading global brands are addressing this.
Backing up distributed data
Eliminating the redundant use of bandwidth and storage capacity and application consolidation in the modern data center.
The essential guide to IT transformation
ServiceNow discusses three IT transformations that can help CIOs automate IT services to transform IT and the enterprise
Next gen security for virtualised datacentres
Legacy security solutions are inefficient due to the architectural differences between physical and virtual environments.