In Ireland, IP rightsholders’ efforts to turn Internet intermediaries into copyright police of their networks have taken a different form: one ISP has adopted a Three Strikes Internet disconnection policy as part of a “voluntary” agreement, not as a requirement of a law.
Ireland’s largest ISP, Eircom, has been following a Three Strikes Internet disconnection policy since May 2010, as the result of an agreement it entered into to settle a copyright infringement lawsuit brought against it by the Irish Recorded Music Association (IRMA). In addition to Internet disconnection, the agreement requires Eircom to block access to websites identified by IRMA and its members, including The Pirate Bay and “similar websites”, without any further judicial review.
Agreements by ISPs such as Eircom to adopt Three Strikes policies and other “voluntary measures” not required by national law raise serious concerns for transparency, due process and accountability. As IP rightsholders’ efforts to get more countries to adopt Three Strikes laws meet with increasing resistance, efforts to have ISPs adopt such “voluntary measures” are now being discussed in global policy venues and enshrined in instruments from WIPO to the Anti-counterfeiting Trade Agreement, in the OECD’s June 2011 Communique on Internet Policy-Making Principles, and in recent European Commission proposals. Given the importance of “voluntary measures” to citizens’ rights of online privacy and freedom of expression and the future of the open Internet, Global Chokepoints includes a detailed description of recent developments in Ireland.
Although the IRMA-Eircom agreement applies only to Eircom, IRMA sued [8] other ISPs in an attempt to force their agreement to adopt similar “voluntary measures”. One of those ISPs, UPC, subsequently brought a legal challenge that resulted in the key ruling that ISPs could not be subject to injunctions requiring them to filter, block websites and terminate Internet access under Irish law.
Ireland is also at the vanguard of challenges to three strikes systems based on privacy and personal data protection. In June 2011, the Irish Data Protection Commissioner announced that it was opening an inquiry into whether the data processing and identification obligations under the IRMA-Eircom agreement are consistent with Irish data protection law. This could result in Irish courts reconsidering whether the type of data processing required for Three Strikes regimes violates Irish and EU data protection and privacy laws, and accordingly, is being closely watched across the world.
Disconnection
Created by: back room dealIreland’s largest ISP, Eircom, has been following a Three Strikes policy since May 2010 under which it suspends Internet users’ Internet access after receiving three rightsholder allegations of copyright infringement. Since December 2010 Eircom has been disconnecting Internet users for up to 12 months on a 4th allegation of copyright infringement.
read more...Filtering
Created by: back room dealIn its original lawsuit against Eircom, IRMA sought an injunction requiring Eircom to filter its subscribers’ communications for potential copyright-infringing material. At around the same time, in 2007, a Belgian music collecting organization had obtained an injunction against Belgian ISP Tiscali (now Scarlet), requiring it to filter all communications on its network for potential copyright-infringing material.
read more...Data Disclosure
Whether ISPs are required to disclose customers’ identity and contact information to rightsholders on an allegation of copyright infringement has been a hotly contested issue in Irish law, and the subject of a 2005 lawsuit against Eircom (more details below). As a member of the EU, Ireland has obligations to protect citizens’ privacy and personal data under a set of EU directives that have been transposed into Irish law.
read more...Blocking
The agreement between IRMA and Eircom went beyond merely imposing a three strikes policy. Under the agreement, "Eircom has agreed that it will not oppose any application our client may make seeking the blocking of access from their network to the Pirate Bay or similar websites." As technology journalist Adrian Weckler notes, this is particularly problematic:
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Facts and Figures
300 Eircom subscribers mistakenly received a “first strike” notice after a server failed to update correctly after daylight savings time went into effect in October 2010.
Since Eircom implemented its three strikes policy, it has apparently seen its customers depart to other competitors at an escalating rate. Some have estimated departures at 1000 subscribers per month. By comparison, UPC (which challenged the lawsuit brought against it by IRMA) has seen its subscriber base increase by 60% during the same time period. Although it is unclear what drives consumer choice of broadband providers in Ireland, some have speculated that the observed changes demonstrate the impact impact of the respective companies’ three strike policies in a competitive market for ISP services.