On 27 June 2012, EMI Records (Ireland) Ltd, Sony Music
Entertainment Ireland Ltd, Universal Music Ireland Ltd and Warner
Music Ireland Ltd secured a court order in the Commercial Court
quashing a notice issued by the Data Protection Commissioner (the
"Commissioner") directing eircom to cease using the
"three strikes" system which is aimed at preventing the
illegal downloading of music.
Under that agreement, eircom subscribers would lose their internet
access for a week after three copyright infringements and lose
access completely after four infringements. The music
companies challenged the Commissioner's enforcement notice of 5
December 2011, which sought to ban the three strike policy on
privacy and data protection grounds following a complaint by a
subscriber who had been wrongly notified of a copyright
infringement on his account due to an error by eircom.
The Enforcement Notice stated, amongst other grounds, that eircom
was breaching data protection law by (i) surveilling traffic data
and not erasing it when it was no longer needed, and (ii)
processing personal data in a manner incompatible with which it was
obtained and without the proper and informed consent of
subscribers. Eircom was given a 60 day period to cease all
processing relevant to the GRS and destroy any such personal
data.
Michael McDowell SC, appearing for the companies, argued that, in
issuing the notice, the Commissioner had acted in excess of his
powers, irrationally, disproportionately and in a manner
prejudicial to the companies' interests. The companies
claimed the notice would effectively unwind their agreement with
eircom and argued it was an unlawful attempt to reopen data
protection issues already determined by the courts in their
favour. Mr McDowell SC added that the Commissioner had failed
to give reasons for his decision to issue a notice.
Decision
The Court found that the notice was invalid due to the
failure by the Commissioner to give reasons as to why it had been
issued. The reasons which appeared to support the notice, to
the extent they could be ascertained, also "involved a
misconstruction of the relevant law", according to the
Court. The case, therefore, turned on the Commissioner's
failure to give reasons and so the Court did not analyse in any
great detail the data protection issues surrounding the three
strikes policy.
The judgment means that eircom can now continue its three strikes
policy and suspend or disconnect internet access to users who
illegally download music.
Appeal
At a conference on privacy held at Blackhall Place on Saturday 8 September 2012, the Deputy Data Commissioner, Gary Davis, announced the Commissioner's intention to appeal the decision of Charleton J to the Supreme Court. Mr Davis noted that the Commissioner strongly disagreed with the Court's decision and felt that Charleton J had not given due weight to the right to privacy under Article 8 of the European Convention on Human Rights and Fundamental Freedoms.
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