Techno File: Three strikes policy is 'compatible with EU law'

Published on Sunday 15 November 2009 20:23

BRITISH internet service providers (ISPs) may be forced to disconnect customers accused of file-sharing without the need for a court hearing, according to a legal expert.

Safeguards for internet access recently agreed by MEPs do not upset UK government proposals, John MacKenzie, an intellectual property specialist at Pinsent Masons, has warned.

His analysis suggests "three strikes" policies to deter file-sharing can operate lawfully in the EU without breaching a forthcoming directive.

The European Parliament and European Council had disagreed over a proposed directive that amends an electronic communications framework directive of 2002.

The disagreement was resolved in recent negotiations and the revisions will be passed this month if supported by the full Parliament and Council.

The most contentious part of the directive sets minimum safeguards that would apply if internet users were threatened with disconnection for illegal file-sharing. France has already passed a law that provides for disconnection after three warnings; the UK government has consulted on similar plans.

The new EU proposal says any measures taken by member states against internet access "shall be subject to adequate procedural safeguards" to conform with human rights law. Some say the wording is an obstacle to plans put forward by the UK government for dealing with file-sharing, but Mr MacKenzie warned that this interpretation is flawed.

"The directive, if passed, will require a process to be followed before disconnection takes place," he said. "That gives member states a lot of flexibility for policies like three-strikes-and-you're-out. It doesn't demand a right to a trial before disconnection takes place."

The government's plan was published in June and updated in August. It has been portrayed as authorising disconnection without any legal process, but Mr MacKenzie said: "When you look at the detail of the UK proposal, and you compare it with the EU's compromise wording, you find that they're compatible," he said.

"Consumers and ISPs may not like the government's approach in the slightest, but its plan to allow disconnections without a court hearing is neither blocked by the EU's proposal nor without precedent. It's a legal process, it's just not one that requires any court hearing."

Consultation begins on sanctions for data breaches

&#149 THE Information Commissioner's Office (ICO) would have the power to fine organisations up to 500,000 for serious breaches of data protection principles under plans announced this week by the UK Ministry of Justice.

The consultation asks whether the proposed maximum fine will provide the ICO with a proportionate sanction to impose on those seriously contravening the data protection principles.

The government opted not to follow the approach of other regulators that impose a penalty up to 10 per cent of an organisation's turnover, and will consult with interested parties until 21 December.