The Irish High Court recently applied CJEU jurisprudence to quash a direction of the Data Protection Commissioner that sought to prevent ISP Eircom operating a voluntary Graduated Response scheme. This continues the trend of judicial disregard for the fulminations of the Article 29 Group and their lay followers.
In January 2009, the Irish Recorded Music Association, representing record labels, settled an injunction claim against Eircom, the leading Irish ISP, on the basis that the latter would
implement a Graduated Response scheme. The compatibility of the scheme was
tested in proceedings before the High Court (EMI Records &
Ors -v- Eircom PLC [2010] IEHC 108 (16 April 2010)). However,
it was subsequently held that there was no jurisdiction under the Irish Copyright and Related Rights Act 2000 to issue an injunction
against an ISP requiring the prevention of infringements by subscribers (EMI Records [Ireland] Ltd & Ors -v- UPC Communications
Ireland Ltd [2010] IEHC 377 (10 November 2010)). Eircom
said that it would continue, however, to perform the terms of its compromise
agreement and apply the Graduated Response in the case of detected
infringements (Eircom press release, 8
December 2010). (The Irish Government has recently amended the 2000 Act to correct this gap in its implementation of
Article 8(3) of the 2001 Directive on Copyright in the Information Society.)
On 11 January 2012, however, the Irish Data Protection Commissioner
issued a direction to Eircom instructing it to desist from operating its
graduated response scheme, citing violations of data processing law. This
provoked an application for judicial review by the record companies party to
the scheme (EMI Records (Ireland) Ltd v Data Protection Commissioner [2012] IEHC
264). On 27 June 2012, Mr Justice Charleton,
granted the application, quashing the direction. Charleton J held that the
Commissioner’s sketchy reasons for issuing the direction were misconceived. Reviewing recent decisions of
the Court of Justice of the European Union, he held that the operation of a Graduated Response scheme did not per se violate
data protection law, and that to the limited extent the Commissioner had given
reasons for his direction, he had misunderstood the law.
It seems that the judges, both national and supra-national, continue to
upset the assumptions of the online privacy lobby.