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TalkTalk: new EU measures will force Government disconnection rethink

10 Nov 2009 | 21.28 Europe/London
One of the UK's biggest ISPs says a late amendment to an European Union agreement on telecoms regulations means it'll now be "almost impossible" for film studios and music labels to force ISPs to disconnect customers who are suspected of illegal files-sharing without obtaining a court order first. The so-called "Internet Freedom Provision" - deemed by the EU to "strengthen the rights of Internet users" - is part of a package of measures that could come into force as early as next year.

TalkTalk, which is the self-ordained "UK's biggest broadband provider to homes and a consistent critic of the Government’s plans to tackle internet piracy," has been contacting copyright and telecoms lawyers. The firm says the way they're interpreting the new EU Telecoms rules, as agreed in Brussels on Thursday, deals a "serious blow" to the proposals for dealing with file-sharing being pushed by Lord Mandelson - which would otherwise "allow disconnection without a proper legal process."

"The recently agreed wording in the draft EU Telecoms Package is clear. Rights holders cannot act as judge and jury in these matters," says Scott Fairbairn, a specialist in telecoms and intellectual property law at CMS Cameron McKenna. "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."

Article 1(3)a is also known as the "Internet Freedom Provision" and, because of its significance, it's worth quoting at length.
Measures taken by Member States regarding end-users’ access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.
Any of these measures regarding end-users’ access to or use of services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law, including effective judicial protection and due process. Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy. A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms . The right to an effective and timely judicial review shall be guaranteed.

Culture secretary Ben Bradshaw has already suggested that court orders will have to be obtained by rights holders before suspected file-thieves in the UK have their broadband cut-off - and the Internet Freedom Provision appears to cement that. "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," Fairbarn continues. "For the UK to impose a requirement to cut off end-users without a prior hearing would not be permissible," adds Paul Brisby, a leading telecoms lawyer at Towerhouse Consulting.

While shoehorning the Freedom Provision into the EU's telecoms reforms meant that the whole set of measures wasn't unanimously agreed upon until quarter to one in the morning, TalkTalk's director of strategy and regulation says all that's been achieved is putting "into legal language what fair-minded people instinctively knew was right and just." The need for a fair process is critical because the evidence that rights-holders use can only identify the broadband connection not the individual file-sharer," says Andrew Heaney. "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."

To date, TalkTalk says 1,615 people have signed up to its campaign against the Government's disconnection proposals at http://petitions.number10.gov.uk/dontdisconnectus/. Whether or not Mandelson and company are actually paying any attention, it looks like they might now be relaxing their stance. The Parliamentary Under-Secretary for Creative Industries, Sion Simon, told the House of Commons yesterday that "hardly anybody, other than the most serious and egregious recidivistic offenders," will be cut-off. "Nobody will have their bandwidth squeezed or their account suspended until they have had repeated letters, been given a healthy notice period and then had a right of appeal — indeed, two rights of appeal," he adds. With the Digital Economy Bill expected to be revealed as part of the Queen's speech next week, you have to wonder whether TalkTalk's going to miss the press coverage it's had from opposing the Government on such a controversial issue.