Eircom/IRMA ‘three strikes’ deal rocked by French court ruling

11 Jun 2009

The ability of the Big Four music labels in Ireland – Universal, Warner, Sony and EMI – to prosecute Irish internet service providers (ISPs) via the ‘three strikes’ settlement they reached with Eircom in January has been undermined by a French court, which declared such measures in France as ‘unconstitutional.’

A decision by a French court yesterday declared a ‘three strikes’ law against music piracy as unconstitutional. This, telecoms and legal experts say, will undermine the Big Four’s representative body Irish Recorded Music Association’s (IRMA) attempts to get Irish ISPs to implement a ‘three strikes’ policy.

In January, as part of an out-of-court settlement with IRMA, Eircom agreed to implement a ‘three strikes and you’re out’ policy against illegal peer-to-peer (P2P) downloaders.

It also agreed to work with data provided by the Big Four labels to help them pinpoint and pursue illegal downloaders and uploaders. The ruling set a precedent and it was expected that all other ISPs in the Irish market would be compelled to co-operate with the music industry.

A month ago, the French Parliament passed the HADOPI legislation that introduced draconian measures to combat music piracy, including a ‘three strikes’ regime for persistent copyright infringers that would eventually result in the perpetrator losing their internet connection. The new law would also make it possible to block sites such as The Pirate Bay.

However, yesterday, the French Constitutional Court deemed the HADOPI legislation unconstitutional.

The HADOPI legislation, it ruled, goes directly against a decision in the European Parliament – Amendment 138 – whereby disconnecting alleged copyright infringers would violate the fundamental rights and freedoms of internet users.

Instead, the entertainment industry is only allowed to send copyright infringement warnings, and people can only lose their internet connections if a court rules that illegal file sharing actually took place.

In Ireland, in recent months, ISPs have received legal letters from IRMA’s solicitors asking them to follow Eircom or face legal action.

“The ruling by the French Constitutional Court undermines IRMA’s attempt to get other ISPs to come aboard,” said TJ McIntyre of Digital Rights Ireland.

McIntyre said the settlement between Eircom and IRMA was effectively a private agreement and did not constitute a legal precedent because it did not involve a court ruling.

“The judgement in France makes it harder for the music industry here to force the ‘three strikes’ rule on Irish ISPs.”

A spokesman for a number of Irish telecoms operators told siliconrepublic.com: “The French Constitutional Court overturned the HADOPI legislation on the basis of human rights and freedom of expression and referred to a decision of the European Parliament.

“This now calls into question the agreement between Eircom and music rights holders regarding the ‘three strikes’ rule and whether it is indeed constitutional to execute.

“The music industry and Eircom would need a court order to suspend a user’s internet connection.”

Ironically, as the European Parliament votes on a potential reform of the European telecoms regulatory environment tomorrow, Amendment 138 will also be voted on.

Amendment 138 states: “Measures taken regarding end-users’ access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, including in relation to privacy, freedom of expression and access to information and the right to a judgment by an independent and impartial tribunal established by law and acting in respect of due process in accordance with Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.”

By John Kennedy