Data commissioner investigating Eircom ‘three strikes’ system

21 Jun 2011

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The Data Protection Commissioner’s (DPC) office has told Siliconrepublic.com it is investigating the ‘proportionality’ of the graduated ‘three strikes’ response system to music piracy agreed between Eircom and the music industry.

It emerged recently that as many as 300 Eircom customers were incorrectly identified as committing acts of music piracy and were issued with letters warning them that after two more warnings they could lose their broadband connections.

“Eircom confirms that there was an issue following daylight savings time change,” a spokesman said, explaining how a glitch caused the wrong people to be issued with letters.

“The number of customers involved is a confidential matter under the Protocol agreement (which was approved by the High Court), but as previously advised, a limited number of customers did receive Level 1 notifications in error.

“Customers were made aware of the issue and provided with a €50 credit on their next Eircom bill. The matter resulted in only one complaint to Eircom. Eircom have taken appropriate steps to ensure that this issue will not occur again.”

While the Data Protection Commission hasn’t so far been involved in the legal battles surrounding the ‘three strikes’ debate that has raged in other European countries, including Belgium, Germany and France, the fact that one of those people who were wrongly issued with a letter made a complaint has changed the situation.

“This office received a complaint in relation to a false notification and is investigating the subject matter of the complaint from the perspective of the Data Protection Acts, including as to whether the subject matter gives rise to any questions as to the proportionality of the graduated response system operated by Eircom and the music industry,” a spokesman told Siliconrepublic.com.

Eircom’s settlement with the music industry

The whole saga goes back to when record companies agreed to a settlement with Eircom in January 2009, in which the incumbent would agree to implement a ‘three strikes’ policy, whereby illegal downloaders would be cut off from internet access if they were proven to have committed copyright theft.

The labels wanted Eircom to install filtering software, such as Audible Magic, to help prevent the rise of music piracy, which coincided with, and which they believe is responsible for, falling music sales. They said that over the course of six years, sales of music CDs in the Irish market went from €146m to €102m in 2007. Globally, according to the IFPI, more than US$40bn worth of music was illegally downloaded in 2007, up from US$20bn in 2006.

Last December, Eircom said it is implementing a "graduated response programme" to combat copyright infringement.

At the time, Eircom said it did not and will not monitor broadband users’ activities at any stage and wouldn’t put any monitoring software or equipment on its network. Nor would it provide any personal details of customers to any third party, including record companies. It said customers who engage in copyright-infringing activities would be first informed their activities are illegal and this would be followed up by written warnings.

“If a customer persists with the illegal activity it may result in a seven-day suspension or year-long disconnection of their broadband service,” Eircom said.

A spokesman for Eircom told Siliconrepublic.com this that there were four levels – written warnings up to Level 2, a seven-day suspension of broadband for Level 3 and a 12-month disconnection if they’ve reached Level 4.

He said the industry comes to Eircom with the IP addresses of illegal downloaders and Eircom then responds by communicating with the customers. However, in this case, technicians had failed to adjust the time stamp and dynamic IP addresses were reassigned to the wrong people.

Three strikes saga far from over

Efforts by the music industry to get other operators to fall into line and implement a ‘three strikes’ system met with defiance by UPC, in particular, which won a High Court victory in October last year.

But this saga is far from over and the DPC’s formal involvement following the complaint by a user makes things all the more interesting.

Following the UPC victory in October, the judge, Mr Justice Peter Charleton, held that laws seeking to identify and disconnect copyright infringers were not enforceable in Ireland, regardless of the record companies’ complaints.

He said he was cognisant of the financial harm being suffered by record labels due to illegal downloading. “This not only undermines their business but ruins the ability of a generation of creative people in Ireland, and elsewhere, to establish a viable living. It is destructive of an important native industry,”

In February, Siliconrepublic.com revealed how, in its final days, the last Government was rushing through a statutory instrument that would amend the existing Copyright Act and which will give judges the power to grant injunctions against ISPs in relation to copyright infringement cases.

There is still support in the audio visual industry for new legislation that will clarify the Irish legal position on illegal downloads. The chairman of Xtra-Vision Peter O’Grady Walshe recently said: “What is needed is a clarification added to the existing copyright laws that ‘reasonable steps are taken’ by purveyors of content to ensure that they take necessary action to ensure they are not the source of illegal or counterfeit content. That is all.”

Last month, a process of reform of Ireland’s copyright regime was kick started again by the Minister for Jobs, Enterprise and Innovation Richard Bruton, TD, in a move he says is aimed at maximising the potential of Ireland’s digital industries.

Bruton is instigating a review of the Copyright and Related Rights Act 2000 which he says will identify any areas of the legislation that might be considered to create barriers to innovation in the digital environment.

In other words, whether it’s a statutory instrument or a new Bill, the issue of how ISPs and telecoms firms will respond to allegations of illegal downloading and how citizens are punished will become enshrined in Irish law.

The formal involvement of the DPC following the letters blunder could turn out to be a welcome development from the perspective of protecting ordinary citizens’ rights.

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Editor John Kennedy is an award-winning technology journalist.

editorial@siliconrepublic.com