EU agreement may derail government internet piracy plans
The new EU agreement on telecoms regulation will make it almost impossible for film studios and music labels to force ISPs to disconnect customers who are suspected of illegal filesharing without first obtaining a court order.
That is the view of telecoms and copyright lawyers contacted by TalkTalk, the UK’s biggest broadband provider to homes and a consistent critic of the Government’s plans to tackle internet piracy.
Their interpretation of the new EU Telecoms rules, agreed in Brussels on Thursday, deals a serious blow to the Government’s proposed anti-filesharing measures which allow disconnection without a proper legal process.
Scott Fairbairn, a specialist in telecoms and intellectual property law at CMS Cameron McKenna, said: “The recently agreed wording in the draft EU Telecoms Package is clear. Rights holders cannot act as judge and jury in these matters.
“They cannot simply instruct ISPs to disconnect their customers or restrict their internet connections. In no way can that be considered to be a ‘fair and impartial’ procedure as article 1(3)a of the new Framework Directive demands.
“At the very least there would need to be some kind of independent and impartial tribunal to consider the merits of each case. If such an essential safeguard is not part of the UK measures then BIS would be in contravention of the new European law.”
The EU agreement states that restricting a user’s internet access may only be imposed “with due respect for the principle of presumption of innocence and the right to privacy“, and as the result of “a prior, fair and impartial procedure…”
“I am extremely concerned that much of the UK government’s proposals as they stand would be illegal,” said Paul Brisby, a leading telecoms lawyer at Towerhouse Consulting. “For the UK to impose a requirement to cut off end-users without a prior hearing would not be permissible.”
Andrew Heaney, director of strategy and regulation at TalkTalk, said: “These European rules have now put into legal language what fair-minded people instinctively knew was right and just.
“No one should be disconnected from the internet unless it is established whether they broke the law through an impartial legal process starting with a presumption of innocence. The accuser has to prove guilt and if guilt is established then any penalty must be tailored to fit the individual circumstances.
“The need for a fair process is critical because the evidence that rightsholders use can only identify the broadband connection not the individual filesharer. This means that millions of account holders are at risk of being wrongly punished due, for instance, to unauthorised wi-fi hijackers using their connections.
“Although the new rules are not yet UK law, we call on the government to respect the spirit of what is intended and to drop its draconian plans to disconnect users without a proper judicial process.”