TalkTalk: EU laws protect UK surfers' rights

 

Gallery

By Stewart Mitchell

Posted on 11 Nov 2009 at 15:02

ISP TalkTalk has welcomed the European Union's new telecoms regulations, claiming they make it impossible for rights holders to force ISPs into disconnecting P2P customers without a court order.

The UK Government has proposed laws to block habitual illegal downloaders from the web under the infamous “three strikes” rule, where file-sharers would be cut off if they ignored warnings.

However, the Government's plans have come under fire from TalkTalk and other subscribers to the Don't Disconnect Us campaign as treating everyone as guilty until they can prove otherwise through an appeals process.

Instead, the EU's New Telecoms Reform Package lays out laws that insist consumers are put through a "fair and impartial procedure" before being disconnected. TalkTalk lawyers describe the EU ruling as “a serious blow to the Government’s proposed anti-filesharing measures which allow disconnection without a proper legal process”.

Rights holders cannot act as judge and jury in these matters

“The wording in the draft EU Telecoms Package is clear - rights holders cannot act as judge and jury in these matters,” says Scott Fairbairn, a specialist in telecoms and intellectual property law at CMS Cameron McKenna. “They cannot simply instruct ISPs to disconnect their customers or restrict their internet connections. In no way can that be considered to be a ‘fair and impartial’ procedure as article 1(3)a of the new Framework Directive demands.

“At the very least there would need to be some kind of independent and impartial tribunal to consider the merits of each case. If such an essential safeguard is not part of the UK measures then the Department for Business, Innovation and Skills would be in contravention of the new European law.”

The EU agreement states that restricting a user’s internet access may only be imposed “with due respect for the principle of presumption of innocence and the right to privacy“, and as the result of “a prior, fair and impartial procedure…”

According to Andrew Heaney, director of strategy and regulation at TalkTalk, the laws laid down by the EU could protect the broadband rights of individuals in households where one member of the family had downloaded music illegally

“No one should be disconnected from the internet unless it is established whether they broke the law through an impartial legal process starting with a presumption of innocence,” says Heaney.

“The need for a fair process is critical because the evidence that rights holders use can only identify the broadband connection not the individual filesharer. This means that millions of account holders are at risk of being wrongly punished due, for instance, to unauthorised Wi-Fi hijackers using their connections.”