British ISPs may be forced to disconnect customers accused of file-sharing without the need for a court hearing, according to a legal expert. Safeguards for internet access that were agreed by MEPs last week do not upset UK Government proposals, he said.
The analysis suggests that so-called 'three strikes' policies to deter file-sharing can operate lawfully in member states without breaching a forthcoming EU Directive.
The European Parliament and European Council had disagreed over a proposed Directive which amends an Electronic Communications Framework Directive of 2002.
That disagreement was resolved by representatives of each body in late-night negotiations last week. The revisions to that Directive will be passed this month if supported by votes of the full Parliament and Council.
The most contentious part of the Directive set minimum safeguards that would apply if internet users were threatened with disconnection for illegal file-sharing. France has already passed a law that provides for the disconnection of file-sharers after three warnings and the UK Government has consulted on similar plans.
The new EU proposal says that any measures taken by member states against users' internet access "shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process."
It adds: "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 of persons concerned […] The right to an effective and timely judicial review shall be guaranteed."
The wording has been celebrated by some as an obstacle to controversial plans put forward by the UK Government for dealing with file-sharing. But John MacKenzie, an intellectual property specialist at Pinsent Masons, the law firm behind OUT-LAW.COM, warned that this interpretation is flawed.
"The Directive if passed will require a process to be followed before disconnection takes place," he said. "That gives Member States a lot of flexibility for policies like three-strikes-and-you're-out. It doesn't demand a right to a trial before disconnection takes place."
The Government's plan (55-page PDF) was published in June and updated (5-page PDF) in August. It has been portrayed as authorising disconnection without any legal process, but MacKenzie said that portrayal is inaccurate.
"When you look at the detail of the UK proposal, and you compare it with the EU's compromise wording, you find that they're compatible," he said. "Consumers and ISPs may not like the Government's approach in the slightest, but its plan to allow disconnections without a court hearing is neither blocked by the EU's proposal nor without precedent. It's a legal process, it's just not one that requires any court hearing."
The Government's plan says that a Code of Practice for ISPs must be prepared. Legislation will be passed that makes the Code compulsory. That Code will set out a procedure that must be followed before sanctions, including disconnection, can be imposed against alleged file-sharers. Technical measures, including disconnection, will also be authorised by legislation.
"The Government's plan talks about the evidence that a rights holder will need to present to an ISP before sanctions can be imposed. It also says that the Code has to be enforced by a person 'sufficiently independent of both ISPs and rights holders' which probably ticks the EU's impartiality box," he said. "It suggests that Ofcom will perform that role."
The Code must also include an appeal mechanism, providing "remedies and redress" where false accusations are made. It adds that "it may be appropriate for an enhanced consumer appeal process to be introduced along the lines of an ombudsman."
"A legislative framework that sets out this process is likely to be a lawful process for the purposes of the new EU law," said MacKenzie. "The process has to give consumers a right to object to false accusations, but that right can be built into the warnings that will precede disconnection. It doesn't have to be a right to appear in court before it takes place."
MacKenzie pointed out that long-established procedures allow energy companies to disconnect customers for non-payment without any trial. "If electricity bills are unpaid, consumers can be cut off, but they are still protected by a legislative framework when that happens," he said. "The supplier has to follow certain steps before disconnecting and the consumer has the right to challenge the disconnection in court – it's just that that right is exercised after the event."
"We also see this approach in the rules that apply to freezing someone's bank account. They won't necessarily get an invitation to a court hearing, but the rules give them powerful remedies if the action is later shown to be without justification."
The Parliament and Council are due to vote on the proposal later this month. They can only approve or reject the proposed text as a whole, without any further amendments.
Parliament needs a simple majority of votes cast, whereas the Council decides by qualified majority. If Parliament or the Council do not approve the joint text, the electronic communications framework Directive is deemed not adopted.