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By: MarkJ - 10 November, 2009 (9:19 AM)
pirate flagBroadband ISP TalkTalk UK ( The Carphone Warehouse ) has said that the new EU agreement on telecoms regulation "will make it almost impossible" for film studios and music labels to force Internet providers to cut-off users who are "suspected" of illegal file sharing (P2P) without first obtaining a court order.

That is apparently the view of telecoms and copyright lawyers contacted by the ISP. Their interpretation of the new EU Telecoms rules, which were agreed in Brussels last Thursday (here), is that rights holders will not be able to act as judge and jury in these matters.

Scott Fairbairn, a specialist in telecoms and intellectual property law at CMS Cameron McKenna, said:

"The recently agreed wording in the draft EU Telecoms Package is clear. Rights holders cannot act as judge and jury in these matters. 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 BIS [the UK government] would be in contravention of the new European law."

Paul Brisby, a leading telecoms lawyer at Towerhouse Consulting, added:

“I am extremely concerned that much of the UK government’s proposals as they stand would be illegal. For the UK to impose a requirement to cut off end-users without a prior hearing would not be permissible.”

Andrew Heaney, director of strategy and regulation at TalkTalk, said:

“These European rules have now put into legal language what fair-minded people instinctively knew was right and just. 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. The accuser has to prove guilt and if guilt is established then any penalty must be tailored to fit the individual circumstances.

The need for a fair process is critical because the evidence that rightsholders 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.

Although the new rules are not yet UK law, we call on the government to respect the spirit of what is intended and to drop its draconian plans to disconnect users without a proper judicial process.”

TalkTalk's stance is unsurprising; they have consistently been one of the most vocal opponents to the governments drive to disconnected "suspected" illegal downloader’s. They have also published research showing how easy it is for legitimate users to be wrongfully targeted (here). It is incredibly difficult to defend against such accusations because of the evidence-less nature of the offence itself.

However it remains a matter of much debate as to whether the new EU rules will play the role that TalkTalk hopes. Much as we've reported before, the wording is extremely ambiguous and a government could easily twist "fair and impartial procedure" into a kind of kangaroo court if they so wished.

Still, neither a government nor an ISP can now cut a customer off from the Internet merely on the say so of a Rights Holder. The text offers plenty of legal ammunition, though the individual rounds could easily be used by both sides to support their respective positions. It is by no means clear cut.

UPDATE 1:09pm

The government's Minister of Culture, Sion Simon, told the House of Common's yesterday that people who have done nothing wrong should not be in any danger of having their Internet connection cut-off at all.

Several warning letters with a healthy notice period will be given first, followed by two rights of appeal before any tougher action is taken. The conservative party also support of this. It is still unclear how the appeal process will be handled.
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