Legal Update

Internet Law - Digital Economy Act - Copyrights - Intellectual Property – Human Rights

Further to our recent legal update relating to the Digital Economy Act (“DEA”), there have been some developments with regards to the DEA’s anticipated “three strike rule”.

DEA “three strike rule”

In its current form the DEA requires ISPs to provide an anonymous infringement list to the copyright owner on request, if the copyright is infringed on more than 3 occasions in a 12 month period. ISPs could potentially be forced to suspend and slow down internet access of online copyright infringers.

A violation of human rights?

According to a report from the United Nation’s Human Rights Council, laws which threaten to cut off internet access to illegal file sharers violate fundamental human rights.

Countries such as the UK and France (which have already adopted the three strike system) are urged to repeal any such system. France’s Hadopi system includes a more explicit net disconnection clause for persistent infringers when compared to the UK’s vague DEA provisions – which refer to the imposition of “technical obligations” on ISPs.

The report is written by Special Rapporteur Frank La Rue, who emphasises that there should be “as little restriction as possible to the flow of information via the internet except in few exceptional and limited circumstances prescribed by international human rights law”. Frank La Rue is an independent investigator appointed by the United Nation’s Human Rights Council to study and report on free speech abuses around the world.

The Special Rapporteur also considers cutting off users from internet access, regardless of the justification provided, to be disproportionate and thus a violation of Article 19, Paragraph 3, of the International Covenant on Civil and Political Rights.

In response to the UN report, the Department Of Culture, Media & Sport (“DCMS”) stressed that any suspensions of internet access under the DEA would be temporary, and also that that element of the UK’s graduated response system was someway off. But, the spokesman said, while the right of the individual to access the internet is important, “there are counter-balancing rights, including to intellectual property, and government must set the balance in a fair and proportionate way”.

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© RT COOPERS, 2011. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.