Remedies for illicit peer-to-peer file sharing: a conflict of fundamental rights
Published on 1 Jul 2009 at 5:05 pm.
1 Comment.
Filed under Misc, Digital Britain, illegal file sharing.
Blog Author: Tony Ballard
Nobody, least of all the government, expects that dealing with illegal peer to peer file sharing will be easy.
Digital Britain sensibly recognises that convenient access to legal content is as much part of the solution as putting new obligations on ISPs. It is looking to industry for the former and is designing legislation for the latter.
BIS, the Department for Business Innovation and Skills, in its 16 June consultation document on illicit p2p file-sharing, has set out details of the legislative proposals. They involve giving new powers and duties to Ofcom. If the initial measures to warn off illicit file sharers and gather information do not work, Ofcom will have powers to require their ISPs to take a variety of technical measures against them, from content filtering to blocking.
If blocking means denying a person access to the Internet, issues of freedom of expression may emerge as they have done in France, where a similar remedy (in the HADOPI law) was challenged on the ground that it infringed the free communication of thoughts and opinions enshrined in the 1789 Declaration of the rights of man and citizen. The Constitutional Court struck down part of the law but not because it was inimical to freedom of expression. It held that there was a balance to be struck between this and other fundamental rights, including the protection of property such as the rights of authors. What was unacceptable was that the power to deny a citizen access to the Internet should be conferred on a mere administrative authority (Conseil Constitutionnel, Decision no. 2009-580 of 10 June 2009).
This is not the first time that illicit file sharing has led the courts to declare a need to balance conflicting fundamental rights. In Productores de Música de España (Promusicae) v Telefónica de España SAU (Case C 275/06). the European Court of Justice had to consider an ISP’s refusal to disclose to rights holders the names and addresses of subscribers whose computers had been used for illicit file sharing on the ground that to disclose them would breach national data protection rules([2008] 2 CMLR 17). The Court took a broad view of the exception for the protection of the “rights and freedoms of others” in Article 13(1) of the Data Protection Directive, holding that it includes the protection of rights of property and their enforcement. The disclosure could be made without offending against the requirements of the Directive.
The BIS consultation document does not explore these issues, although it recognises (in paragraph 4.23) that the new powers will be contentious. It ducks them. Its approach seems to be to aim to confer the necessary powers and leave Ofcom to work out whether it is able lawfully to exercise them. What it says (in paragraph 4.28) is that Ofcom will have regard to any “relevant legal requirements (for example in privacy and data protection legislation and the e-Commerce Directive).” Unless a challenge of the kind made in France emerges, it sees that it will be for Ofcom to strike a balance between conflicting rights so far as illicit file sharing is concerned. If it does not do so, its decisions will no doubt be subject to judicial review (which may be the answer to any such challenge).
European law guarantees a number of fundamental rights but where the Internet brings them into conflict with each other the courts are not treating them as absolute. They are evidently taking a nuanced approach to them and accept that a balance must be struck. Perhaps what the French decision indicates most clearly is that the courts will wish to ensure that proper safeguards are in place but will not apply these guarantees dogmatically.
Nevertheless it is interesting to see that the outline of the Digital Economy Bill in the government’s draft legislative programme published on 29 June refers to giving Ofcom powers for the initial measures to warn off illicit file-sharers and to gather information but makes no reference whatsoever to the powers to apply technical measures. Is the government thinking again?
Mimi on 23 Sep 2009 at 11:14 am: 1
What I personally see is that file sharing is getting “legalized” by using the DMCA policy. Many sites will state that they do not host files but are just providing links of files. If there is a DMCA complaint, they will just remove the links.