TalkTalk threatens to court Government over three-strikes

Now the Government’s put a timetable in place for its plans to disconnect persistent online pirates, one ISP is considering a counter-attack that could see more than individual file-shares up in court. TalkTalk says it may resort to legal action if Lord Peter Mandelson continues with his plans – and it’s not the only one unhappy with the business secretary.

TalkTalk, which is owned by Carphone Warehouse, is one of the biggest internet service providers in the UK, serving four million customers. It’s considering taking the matters to court on the grounds that the Government’s plan would take suspected file-thieves as being “guilty until innocent” and would therefore be a breach of their human rights. As things stand, online copyright criminals could be cut off – albeit as a last resort – from the summer of 2011 onwards.

“The approach … substitutes proper judicial process for a kangaroo court,” said Andrew Heaney, the ISP’s executive director of strategy and regulation. “We know this approach will lead to wrongful accusations [and] we would consider extra-judicial technical measures and would look to appeal the decision. TalkTalk will continue to resist any attempts to make it impose technical measures on its customers unless directed to do so by a court or recognised tribunal.”

With Mandelson’s announcement at the C&binet forum emphasising that internet service providers are going to have to pay to police their own networks under current Government thinking, it’s no surprise ISPs are grumbling so loudly. The marketing manager at Entanet, Darren Farnden, has summed up their feeling under the headline “Mandelson’s Mindless  Meddling Infuriates Internet Industry:”

Asking ISPs to police the Internet is like asking the Highways Agency to take responsibility for all of the accidents that happen on the roads. We are no more able to control how people use their connectivity than someone who builds and maintains roads can control the way in which people drive. All we can do is make sure that the highway is in working order, put reasonable usage policies in place and take appropriate action when it is necessary, merited and most importantly proven.

When it comes to actually taking legal action against the Government – which would be particularly costly, especially with costs to pay if the challenger lost the case – ISPs might not have a leg to stand on. That’s according to Tony Ballard, partner at London-based media and entertainment law firm Harbottle & Lewis, who issued a statement saying that in European law “individual states and their courts hold … the balance.” “This issue over whether removing someone’s internet access breaches some fundamental right has been quite clearly settled by the European Court of Justice,” the statement continues. “It ruled in a Spanish file sharing case last year that a user’s fundamental rights are not absolute but have to be weighed against the rights of others, including copyright owners.”

While the “internet industry” was setting its features sternly, it appears record bosses were more likely to be drawing smiles on their faces. Geoff Taylor, chief executive at the BPI, welcomed Mandelson’s proposals as “a proportionate way of encouraging illegal file sharers to embrace the new services.” His sentiment wasn’t unanimous, however; Internet upstarts have been more critical. “Creating a variety of reasonable and sustainable models for providing music to consumers is key to ending rampant piracy,” says we7 CEO Steve Purdham. “This is the approach that should be taken by the government rather than criminalising consumers and driving pirates further into the undergrowth.”

Consumer groups have been standing up for the rest of us, even if doing so is related to their desire for us to, say, buy more magazines. Which? has come out and said it’s concerned the new proposals are “neither fair nor effective.” As one of its “campaigners,” Clare Corbett has declared, the Government “must ensure that people who have been wrongly accused of illegal filesharing have access to a fair, free and quick independent adjudication system and that any penalties are proportionate.” So the it looks like the little guy can breathe easy, right?

Whether any ISP would actually take the Government to court, considering the costly nature of legal battles and the fact they’re trying to avoid having to pay to police their networks, remains to be seen. In the meantime, TalkTalk is launching its own music service tied into its Tiscali brand. It’ll be interesting to see if its position changes now it has more in common with the rights holders who argue they’re losing out because of online piracy – or if it starts taking the money it earns through the venture and putting it where its mouth is.

Tags: BPI, C&binet, file sharing, Mandelson, piracy, TalkTalk, three strikes, Tiscali, We7, Which?