Ireland

In January 2009 the Irish Recorded Music Association settled an injunction claim against Eircom, the leading Irish ISP, on the basis that the latter would implement a graduated response scheme. The compatibility of the scheme was tested in proceedings before the High Court (EMI Records & Ors -v- Eircom PLC [2010] IEHC 108 (16 April 2010)). However, it was subsequently held that there was no jurisdiction to issue an injunction against an ISP requiring the prevention of infringements by subscribers (EMI Records [Ireland] Ltd & Ors -v- UPC Communications Ireland Ltd [2010] IEHC 377 (10 November 2010)). This decision entailed that Ireland had failed correctly to implement Article 8(3) of the European Union Directive 2001/29/EC, which requires injunctive relief to be available against an intermediary to prevent infringement. Eircom said that it would continue, however, to perform the terms of its compromise agreement and apply the Graduated Response in the case of detected infringements (Eircom press release, 8 December 2010).

The Irish Government undertook the consideration of amendments to the Copyright and Related Rights Act 2000 fully to implement Article 8(3) of the Directive. In June/July 2011 comments were sought on a draft statutory instrument. In the view of some right holders, at least, the Government’s first draft needed considerable improvement. Ultimately on 29 February 2012, S.I. 29 of 2012, the European Union (Copyright and Related Rights) Regulations were passed into law, adding succinct provisions to the Act of 2000 not dissimilar from section 97A of the UK Copyright, Designs and Patents Act 1988. On 11 January 2012, however, the Irish Data Protection Commissioner issued a direction to Eircom instructing it to cease from operating its graduated response scheme, citing violations of data processing law. This provoked an application for judicial review by the record companies party to the scheme (EMI Records (Ireland) Ltd v Data Protection Commissioner [2012] IEHC 264). On 27 June 2012, Mr Justice Charleton granted the application, quashing the direction. Charleton J held that the Commissioner’s sketchy reasons were misconceived. Reviewing recent decisions of the Court of Justice of the European Union, he held that the operation of a graduated response scheme did not per se violate data protection law, and that to the limited extent the Commissioner had given reasons for his direction, he had misunderstood the law.

On 27 March 2015, it was reported that the High Court had finally imposed a similar three strikes regime on UPC, in litigation brought by the major record labels. The judgment, Sony Music Entertainment (Ireland) Limited & Ors -v- UPC Communications Ireland Limited (No. 1) [2015] IEHC 317, reaffirms the policy of the Irish High Court to protect the constitutional rights of authors. Although the precise terms of the injunction were left for further discussion, the court indicated that it would grant an injunction requiring the defendant to operate a notification scheme at its own expense. This would consist of the sending of “cease and desist” letters by the ISP to its customers following the notification by the plaintiff of a detected infringement. After a third notification by the plaintiff, the ISP would disclose the fact that  two notifications had already received, so enabling the plaintiff to apply for a Norwich Pharmacal order for disclosure of the identity of the account holder. The plaintiff would then be at liberty to seek an order under s. 40(5A) of the 2000 Act to suspend or terminate the account holder’s access to the Internet. The number of notifications by the plaintiff would be limited to 2,500 per month.

The case returned to court for directions, resulting in a further judgement on 21 May 2015, Sony Music Entertainment (Irl) Ltd & ors v UPC Communications Irl Ltd (No 2) [2015] IEHC 386. Mr Justice Cregan addressed certain issues which had been left for further discussion, including the possibility of incorporating an independent adjudicator within the court-imposed scheme. In the event, this notion was rejected. The order implements the notification scheme described above. The plaintiff is required to contribute 20 per cent of any capital expenditure incurred by the defendant in implementing the scheme, such expenditure to be capped for this purpose at €940,000. The scheme is limited to fixed broadband subscribers and excludes business users. Although the court rejected the defendant’s suggestion that the injunction be time-limited, it directed that the case be relisted for directions in five years’ time. On 17 June 2015, Mr Justice Cregan dealt with the costs of the proceedings, awarding the plaintiffs 60 per cent of their costs up to the grant of the injunction and making no order for costs in respect of the subsequent proceedings (Sony Music Entertainment (Irl) Ltd & ors -v- UPC Communications Irl Ltd (No 3) [2015] IEHC 388).

The defendant ISP appealed to the Court of Appeal. In a judgment handed down on 28 July 2016, the Court of Appeal dismissed the appeal, approving Cregan J’s reasoning on all points bar two. The provision of his order directing a further hearing in five years’ time was deleted – the question of review in changed circumstances was adequately dealt with by the “liberty to apply” provision; and the High Court’s direction that no costs were to be sought on any consequent Norwich Pharmacal application was also removed, on the basis that that was an anticipatory order that it was unnecessary to make at the present time.

Other High Court decisions:

ISPs must disclose subscriber data: EMI Records (Ireland) Ltd -v- Eircom Ltd [2005] IEHC 233 (8 July 2005).

Site-blocking injunction: EMI Records (Ireland) Ltd -v- Eircom Ltd [2009] IEHC 411 (24 July 2009).