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ISP CAN cut off pirates with 'three strike' rule, says Irish beak

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Four music record companies have won a court order in Ireland overturning a ban placed on an anti-piracy policy operated by the country's largest internet service provider (ISP).

In December last year Ireland's data protection watchdog had issued an enforcement notice banning Eircom from operating its 'three strikes' system. The Office of the Data Protection Commissioner in Ireland (ODPC) had expressed concern that Eircom's system of using IP addresses to identify alleged copyright infringers invades customers' privacy, according to media reports at the time.

However, the Commercial Court in Ireland has ruled that the order given by the Office of the Data Protection Commissioner in Ireland (ODPC) be overturned on the basis that it had been invalid, according to a report by the Irish Times.

The ODPC failed to give reasons in the notice why it had served in the first place, the judge determined. The judge also said that the apparent reasons relied upon by the ODPC for it serving the notice "involved a misconstruction of the relevant law," according to the Irish Times' report.

Eircom's 'three strikes' system warns customers suspected of illegal file-sharing that they face being cut off from the internet if they persist with the activity. The system, which Eircom agreed with EMI, Sony, Universal and Warner, had been approved by the Irish Government.

The ODPC would only tell Out-Law.com that it was "studying" the court's ruling. In 2010 Ireland's High Court ruled that Eircom was able to monitor for illegal file-sharing after determining that the practice did not breach data protection laws.

The ODPC had questioned whether or not the use of internet protocol (IP) address information and monitoring of users' activities broke privacy laws. The Court said though that Eircom's system was legal.

Software identifies copyright-infringing activity and finds out which IP address unauthorised material is being sent to. If that address relates to an Eircom account the ISP is obliged to write twice to the bill payer to inform them that copyright infringement has taken place and must stop. On a third occasion the internet access will be cut off for a week and permanently disabled following a fourth offence.

The Court said that this activity did not break data protection laws because the record labels and DetectNet did not discover and were not interested in subscribers' identities. The information being processed did not count as 'personal data', it said.

In December last year though the watchdog had said that it had "concluded" a six-month long investigation into Eircom's 'three strikes' system. The ODPC had launched its investigation after discovering that Eircom sent 'first strike' warning letters to 300 customers wrongly accusing them of illegal file-sharing. At the time Eircom put the wrongful identification of users down to a "software failure caused when the clocks went back last October".

Last year the European Court of Justice (ECJ) ruled that although the protection of intellectual property is a fundamental right under EU law, it is not "absolutely protected" and has to be balanced against other fundamental rights. It ruled that a Belgian court had not struck a "fair balance" between the rights of a music royalties collecting society and those of an internet service provider (ISP) and its customers when ordering the ISP to filter online traffic in search of copyright infringement. Under the EU Charter of Fundamental Rights individuals generally have a right to privacy and protection of personal data. The Charter also confers rights on free speech, the freedom to conduct business and states that intellectual property (IP) "shall be protected".

In the UK leading ISPs will be required to issue copyright infringement notices to their customers under new plans drawn up by Ofcom.

Copyright © 2012, Out-Law.com

Out-Law.com is part of international law firm Pinsent Masons.

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