On 27 June 2012, Mr Justice Charleton gave his decision in the judicial review action taken by the Irish recording companies to prevent the graduated response system (GRS) agreed with eircom, the largest ISP in Ireland, being shut down as illegal. The decision quashed the Data Protection Commissioner's (DPC's) objections on administrative grounds, ie, inadequacy of reasons, but for now at least the decision permits the continuation of the GRS as one way of combating online copyright infringements in Ireland.
The DPC issued an Enforcement Notice on 11 January 2012 requiring that eircom discontinue the GRS following a subscriber complaint. The subscriber in question was wrongly notified of a copyright infringement on his account due to an error by eircom in correlating the dynamic IP address used in the copyright infringement with the correct customer account as eircom had failed to change its clocks back one hour for winter time. This led to 391 incorrect copyright infringement notices or "strikes" being sent to subscribers.
Eircom had agreed to implement the GRS, or in this case "4 strikes" policy, as part of a settlement back in 2009 when the recording companies sought an injunction against eircom from the Commercial Court requiring it to stop copyright infringement on its network. Similar proceedings were issued the same year against UPC seeking an injunction that UPC, amongst other things, adopt a GRS. MOP successfully defended UPC in those proceedings.
Mr Justice Charleton had in April 2010 given a decision at the request of the recording companies that the GRS adopted by eircom was compliant with data protection law. The DPC had entered into correspondence with the relevant parties prior to this earlier decision expressing a contrary opinion but did not take part in the court proceedings. The DPC claimed in the more recent proceedings that the law had changed since April 2010 and the issue of compliance of the GRS with data protection and privacy laws must be revisited.
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. It was also stated that eircom had failed to process data accurately referring to the notices being sent to the wrong subscribers on foot of the failure to adjust the time promptly. Eircom was given a 60 day period to cease all processing relevant to the GRS and destroy any such personal data.
The central issue to be determined was whether the DPC had failed to provide adequate reasons in the Enforcement Notice as required by Section 10(4)(a) of the Data Protection Acts 1988 and 2003. Mr Justice Charleton indicated that there could be no reasonable expectation of privacy for participants on a peer to peer network involved in copyright infringing file sharing but in any event the DPC had not made its objection on this point clear with adequate reasons. It was held that the Enforcement Notice contained no reasons whatsoever as required by statute, something which the Court is required to ensure compliance. Therefore, the absence of reasons vitiated the validity of the Enforcement Notice. Mr Justice Charleton did not accept that the DPC should be afforded a level of curial deference to bypass this statutory obligation to provide reasons.
The decision is essentially one of administrative law and does not significantly revisit the data protection issues surrounding the GRS, which could come before the Court again in a different context. To that extent, the decision's relevance to copyright issues is limited. It is interesting to note that none of the parties took up the Court's invitation to explore a reference to the Court of Justice of the European Union.
It seems that the GRS can continue in operation as agreed between the recording companies and eircom. This decision facilitates the GRS by agreement between private parties but does not, in particular, address whether a GRS can be ordered by a court by way of injunctive relief if ISPs do not adopt it voluntarily. That issue may yet come up for determination. Mr Justice Charleton also expressly stated that he was not required to opine on the issue of recourse to a judicial process, something which under the relevant EU telecoms framework legislation may be required of a GRS system.
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