SHEFFIELD, ENGLAND — A Sheffield University law professor and one of her students have analyzed a proposed “three-strikes” law that would disconnect serial copyright violators from the Web and denounced the proposal as a gateway to wholesale abuses of personal liberty in the European Union.Professor Lilian Edwards and student Simon Bradshaw said because of the way proposed EU-wide telecoms reform legislation is structured, a French law currently under consideration could be incorporated by default and result in severe penalties for innocent people. The French bill, passed by the Senate earlier this month and currently awaiting approval by the National Assembly, would require internet service providers to disconnect from the Web any user who is caught three times pirating copyrighted material.
The EU telecoms reform bill currently under consideration by the European Parliament recommends fines and other sanctions for content pirates, but it contains “a crucial set of obligations, about to be imposed on all of Europe’s ISPs and telcos, which should be debated in the open, not passed under cover of stealth in the context of a vast and incomprehensible package of telecoms regulation,” Edwards and Bradshaw wrote in a report. “It seems, on careful legal examination by independent experts, more than possible that such a deliberate stealth exercise is indeed going on.”
In other words, although the European Parliament repeatedly has denounced disconnection as too harsh a penalty for copyright violation, MPs may be attempting to sidestep political criticism for enacting just such a provision by including stealth provisions in the telecoms bill and then laying the blame on France.
“When passed, these obligations will provide Europe-level authority for France’s current ‘three-strikes’ legislation, even though this has already been denounced as against fundamental rights by the European Parliament, when it was made clear to them what they were voting for or against,” Edwards and Bradshaw wrote.
Under France’s proposed “graduated response” anti-piracy law — which mandates enforcement by ISPs, not federal authorities — the first time an internet user is suspected of stealing content, he will be warned via email. The second offense will deliver a warning by postal mail, and the third will result in the automatic suspension of his online privileges for one year. That is particularly problematic for Edwards and Bradshaw, as suspending one person’s Web access could mean suspending access for everyone else in the household. The academics consider that severe a response disproportionate to the crime.
The U.K.’s six largest ISPs, in conjunction with the country’s film and music industries, already are engaged in a six-week trial of alternative penalties to see if email notification of 1,000 suspected copyright violators each week will reduce the incidence of content piracy. If it does not and the industries cannot come to a joint agreement about how to handle the problem in another way, the British government has indicated it may legislate disconnection of offenders.
Among the problems critics of proposed disconnection schemes have pointed out is that the systems rely on evidence provided by copyright owners, and sometimes the evidence is flawed or collected in overly aggressive ways. In addition, disconnection decisions are made entirely by ISPs and the content industries, without any sort of court intervention — and that strips citizens of guaranteed legal safeguards, critics argue.
Both of those criticisms led the European Parliament earlier this year to introduce into the telecoms reform legislation amendments that specifically prohibit disconnection as punishment. However, according to Edwards and Bradshaw, that language recently was replaced by something less strident.
“In the latest revised [European] Commission version … [one of the three-strikes amendments] is reinstated,” the Edwards/Bradshaw analysis notes. “It is accepted ‘in principle’ and is noted as providing a ‘useful restatement of the need to ensure the balancing of fundamental rights.’
“If this amendment is retained in the final version, it would make it highly dubious if an arrangement such as that contemplated in the U.K., where ISPs and rightsholders between them might order disconnection, would be sufficient ‘due process’ and therefore legal.”
Although Edwards and Bradshaw admitted some aspects of their interpretation required “stretching” the literal letter of the proposed legislation, such behavior is not uncommon among politicians or in the courts.
“It has to be emphasized that such an interpretation would require extreme stretching of the words to enable particular interests; nonetheless, history provides many examples of legislation being used to ends outside its nominal purpose but within its literal meaning,” the academics noted. “Although EU legislation is meant to be interpreted purposively, this is of particular concern to countries such as the U.K. that have a history of transposing and interpreting EU legislation in a more traditionally literal manner.”
