Countries which pass laws allowing for the termination of internet connections used by suspected file-sharers without the oversight of a judge will be breaking EU law, the European Commissioner responsible for telecoms policy has said.
Viviane Reding said that Spain would break EU law if it allowed for disconnections without a judge's prior involvement. Her view adds to the debate about the exact requirements of lawful disconnection.
Some EU countries, including the UK, are introducing laws that would force internet service providers (ISPs) to terminate the connections used by people suspected of engaging in copyright-infringing music and video file sharing.
The European Parliament today passed a series of EU telecoms law reforms which included a demand that due process be followed in any disconnections.
The Parliament had previously insisted on court oversight but had to tone down its demands after its own legal service advised it that that demand was out with the Parliament's rights over member states.
The new 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 says that "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".
There has been some debate on whether or not this has to involve a court and a judge or whether independent arbitration, such as that proposed in the UK, would be enough to satisfy the EU law. Reding said in a speech yesterday, though, that a judge had to be involved.
"I would like to stress the need for any possible legislative initiative to comply with the agreement reflected in the Telecoms Reform Package," she said in a speech in Barcelona. "Spanish measures that would allow for the cutting off of internet access without a prior fair and impartial procedure in front of a judge is certain to run into conflict with European law."
John MacKenzie, a technology law specialist at Pinsent Masons, the law firm behind OUT-LAW.COM, has argued that the UK's proposed solution does not conflict with the just-passed EU law.
The UK intends to allow cut-off subscribers to appeal to a body set up by Ofcom. If a subscriber appeals the disconnection will not happen until after the appeal.
"The Directive … will require a process to be followed before disconnection takes place," he previously 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."
MacKenzie said that Reding's comments do not necessarily change the position because there is some flexibility about exactly what can be meant by a 'judge'.
"When someone is having their electricity supply cut off then there is a warrant granted by a magistrate following the presenting or certain evidence," he said. "The procedure to freeze assets includes a warrant being seen by a judge but that doesn't men you have full blown trial."
"It depends what you mean by 'a judge'," he said. "An arbiter – somebody appointed to decide or deal with these issues – may not be a judge in the classic sense but would be a decision maker and as long as there is a process in place to allow people to fairly and properly to oppose or recall these orders that should comply with European law."
The UK Government last week published the Digital Economy Bill, which includes provisions to force ISPs to disconnect users accused of file sharing. It has met with opposition from digital rights activists and ISPs, but has been welcomed by record labels.
A spokeswoman for the European Commission said that there was not a black and white rule about exactly who should be involved in the judicial reviews required by the new law. "Each national system/law will have to be assessed on a case-by-case basis before being able to say whether this contradicts or is in conformity with the new European law," she said.