ISP introduces “graduated response” leading to disconnection for illegal downloaders

Reporters Without Borders is disturbed to learn that Eircom, one of Ireland’s main Internet Service Providers, has become the first ISP in Europe to voluntarily introduce a “graduated response” procedure under which clients who download music illegally could end up losing their Internet connection. Announced on 24 May, the decision was motivated by business concerns and lacks any legal legitimacy. It is the result of an agreement between Eircom and the Irish Recorded Music Association (IRMA), which represents 55 music industry companies including Sony, Universal, EMI and Warner. “The current tendency is to put Internet Service Providers at the centre of efforts to combat illegal downloading,” Reporters Without Borders said. “This is also the case with the ACTA, the proposed international treaty against counterfeiting that is currently being discussed. The disastrous effect of these initiatives is to turn the ISP into an Internet policeman.” The press freedom organisation added: “It is the ISP that, flouting the right of defence and presumption of innocence, arbitrarily decides to interrupt Internet access, which is a fundamental right. Eircom reluctantly agreed to this pilot project in order to avoid legal sanctions under a lawsuit brought by Irish copyright holders that accused it of failing to take any steps to combat illegal downloading. ” Employing a tracking method developed by DtecNet, the IRMA will identify the IP addresses of people who use Peer to Peer networks (P2P) to share copyrighted music online illegally. The information will then be passed to Eircom, which will then have to identify and contact them. Once identified, suspected illegal downloaders will be contacted twice by phone, mail or email. If there is evidence of further illegal downloading, they will be sent a letter. If they continue again, their Internet service will be suspended for a week. If they are caught a fourth time, their connection will be suspended for a year. The Office of the Data Protection Commissioner, which protects online privacy, challenged this procedure before the Dublin high court, but the court ruled that tracking IP addresses was not a violation of the agreement between the ISP and its clients as IP addresses did not constitute personal data. Defending its decision, Eircom said it was “committed to helping customers understand the issues surrounding the illegal file sharing of copyrighted music.” But it could be commercial suicide for Eircom if other ISPs do not follow suit. Eircom’s main rival, UPC, had already taken the position that there was no legal basis for tracking IP addresses and suspending clients’ Internet access. On 23 May, a UPC spokesperson confirmed the company’s refusal to adopt similar measures. UPC is also being prosecuted by the IRMA and the case is due to be heard on 17 June. France’s HADOPI law also envisages a graduated response to illegal downloading but court approval must be obtained before an Internet connection is suspended (http://en.rsf.org/france-government-pushes-through-spruced-21-09-2009,34538.html).