The content industry has lobbied to force internet service
providers (ISPs) to disconnect users they suspect of engaging in
copyright-infringing file-sharing after two warnings.
Digital rights activists have questioned the accuracy of the
evidence gathered by industry against individuals and have said
that the effects on a whole household of one user's actions are
disproportionate.
Sheffield University professor of internet law Lilian Edwards
and student Simon Bradshaw have analysed the documents that make up
EU proposals for telecoms reform and have discovered that proposed
new EU laws could pave the way for 'three strikes' schemes against
the wishes of the European Parliament.
"This is a crucial set of obligations, about to be imposed on
all of Europe’s ISPs and telcos, which should be debated in the
open, not passed under cover of stealth in the context of a vast
and incomprehensible package of telecoms regulation," they said in
a report. "It seems, on careful legal examination by independent
experts, more than possible that such a deliberate stealth exercise
is indeed going on."
"When passed, these obligations will provide Europe-level
authority for France’s current '3 strikes' legislation, even though
this has already been denounced as against fundamental rights by
the European Parliament, when it was made clear to them what they
were voting for or against," they said.
The UK's six major ISPs have agreed a 'memorandum of
understanding' (MoU) with the music and film industries by which
they will write to 1,000 alleged illegal file-sharers a week in a
trial to see if the action reduces copyright infringement.
The agreement stops short of disconnection, and the Government
has said that if the ISP and content industries cannot agree a
deal, it may legislate on disconnection for offending users. France
is in the process of creating such a law.
The European Commission has proposed a series of telecoms
reforms which have been modified both by the European Parliament
and the EU's Council of Ministers. If the Commission, Council of
Ministers and Parliament can agree on the Commission's current
version of the laws then they could be passed by the end of the
year, Edwards said.
The European Parliament blocked moves earlier this year to
introduce EU rules about blocking internet access to illegal file
sharers. Edwards said that the Parliament introduced blocks to the
telecoms reform package as well, but that the two blocks were
removed by the Council of Ministers, and one was reinstated by the
Commission.
"In the latest revised Commission version, however, [one of the
blocking amendments] is reinstated," said the paper. "It is
accepted ‘in principle’ and is noted as providing a 'useful
restatement of the need to ensure the balancing of fundamental
rights'."
"This is definitely good news for those concerned about
connection sanctions as it is one of the two key ‘safeguard
provisions’. It is also a clear endorsement by the Commission of a
key safeguard inserted by the Parliament and rejected by the
Council of Ministers," it said.
Opponents of the three strikes rule the issue of illegal file
sharing should be decided not by industry but by courts, and the
evidence on which decisions are made independently examined.
"If this amendment is retained in the final version, it would
make it highly dubious if an arrangement such as that contemplated
in the UK MoU, where ISPs and rightholders between them might order
disconnection, would be sufficient 'due process' and therefore
legal."
Edwards' and Bradshaw's paper said that to read the proposed EU
reforms in this way is to stretch the literal meaning of the
documents, but that this has often happened in the past and could
happen again.
"It has to be emphasised that such an interpretation would
require extreme stretching of the words to enable particular
interests; nonetheless, history provides many examples of
legislation being used to ends outside its nominal purpose but
within its literal meaning," it said. "Although EU legislation is
mean to be interpreted purposively, this is of particular concern
to countries, such as the UK, that have a history of transposing
and interpreting EU legislation in a more traditionally literal
manner."
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