On 27 June 2012, EMI Records (Ireland) Ltd, Sony Music Entertainment Ireland Ltd, Universal Music Ireland Ltd and Warner Music Ireland Ltd secured a court order in the Commercial Court quashing a notice issued by the Data Protection Commissioner (the “Commissioner”) directing eircom to cease using the “three strikes” system which is aimed at preventing the illegal downloading of music.

Under that agreement, eircom subscribers would lose their internet access for a week after three copyright infringements and lose access completely after four infringements. The music companies challenged the Commissioner’s enforcement notice of 5 December 2011, which sought to ban the three strike policy on privacy and data protection grounds following a complaint by a subscriber who had been wrongly notified of a copyright infringement on his account due to an error by eircom.

The Enforcement Notice stated, amongst other grounds, that eircom was breaching data protection law by (i) surveilling traffic data and not erasing it when it was no longer needed, and (ii) processing personal data in a manner incompatible with which it was obtained and without the proper and informed consent of subscribers. Eircom was given a 60 day period to cease all processing relevant to the GRS and destroy any such personal data.

Michael McDowell SC, appearing for the companies, argued that, in issuing the notice, the Commissioner had acted in excess of his powers, irrationally, disproportionately and in a manner prejudicial to the companies’ interests. The companies claimed the notice would effectively unwind their agreement with eircom and argued it was an unlawful attempt to reopen data protection issues already determined by the courts in their favour. Mr McDowell SC added that the Commissioner had failed to give reasons for his decision to issue a notice.

Decision

The Court found that the notice was invalid due to the failure by the Commissioner to give reasons as to why it had been issued. The reasons which appeared to support the notice, to the extent they could be ascertained, also “involved a misconstruction of the relevant law”, according to the Court. The case, therefore, turned on the Commissioner’s failure to give reasons and so the Court did not analyse in any great detail the data protection issues surrounding the three strikes policy.

The judgment means that eircom can now continue its three strikes policy and suspend or disconnect internet access to users who illegally download music.

Appeal

At a conference on privacy held at Blackhall Place on Saturday 8 September 2012, the Deputy Data Commissioner, Gary Davis, announced the Commissioner’s intention to appeal the decision of Charleton J to the Supreme Court. Mr Davis noted that the Commissioner strongly disagreed with the Court’s decision and felt that Charleton J had not given due weight to the right to privacy under Article 8 of the European Convention on Human Rights and Fundamental Freedoms.