DIGITAL RIGHTS IRELAND LTD.

Intellectual Property Unit Department of Jobs, Enterprise and Innovation, Kildare Street, Dublin 2.

Friday, July 29, 2011

Via email: IPU@djei.ie

Consultation on Amendment to Copyright and Related Rights Act, 2000 Submission on behalf of Digital Rights Ireland Ltd.

Introduction

DRI is a not for profit company which was established for the purpose of defending civil rights in a digital age. We welcome the opportunity to comment on the draft statutory instrument.

Support for ALTO submission

We have had sight of and support the submission from ALTO. Consequently this submission will confine itself to some additional points which we believe require further emphasis.

The statutory instrument is premature

There has been no reason given as to why this matter has been treated with such urgency. There has been no indication that infringement proceedings have been commenced by the European Commission and given the ongoing and closely related work of the Copyright Review Committee DRI submits that the need for reform should be considered in conjunction with the work of the Committee. The statutory instrument is also premature in that it is likely to be subject to revision once the European Court of Justice has ruled in Scarlet (Extended) v.
REGISTERED NUMBER 410355 REGISTERED OFFICE: 10 CASTLE HILL, BENNETTSBRIDGE ROAD, KILKENNY EMAIL: INFO@DIGITALRIGHTS.IE
DIRECTORS: TJ MCINTYRE, COLM MACCARTHAIGH, ANTOIN OLACHTNAIN

SABAM (Case C-70/10) and SABAM v. NETLOG (Case C-360/10). It is, therefore, undesirable and unwise to legislate until such time as the ECJ has clarified what European Union law in this area actually requires.

The statutory instrument would not be ECHR compliant

It is a fundamental principle under the European Convention on Human Rights that any restriction on freedom of expression, including the right to receive and impart information, must be prescribed by law (Article 10.2). Caselaw of the European Court of Human Rights has made it clear that the phrase prescribed by law creates a requirement that the law be both accessible and predictable in its effect. In Sunday Times v. UK (1979) 2 EHRR 245 this was explained as follows:
the following are two of the requirements that flow from the expression prescribed by law. First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able to foresee...the consequences which a given action may entail.

A similar obligation applies in respect of interferences with the right to privacy under Article 8 ECHR, where such interferences are permissible only where they are in accordance with law.

The proposed statutory instrument follows a common and minimalist approach towards the transposition of directives into Irish law. However, by conferring on the court an apparently open-ended power with almost no guidance as to how that power is to be exercised, it creates a situation where the exercise of that power would likely not meet the requirements of either Article 8 or 10 ECHR.

For example, if an injunction requiring an ISP to block access to a website was sought, the court would be left without any guidance in either primary or secondary legislation governing such basic matters as the nature of the injunction, the criteria for its grant, or the impact on third parties. This is all the more apparent in relation to other possible remedies, such as orders requiring deep packet inspection of p2p traffic where strong privacy issues would also Page 2 of 4

be presented. The proposed provision that the court shall make such directions as the court may deem necessary or appropriate in all the circumstances leaves the matter no clearer and merely emphasises the open-ended nature of the discretion conferred on the court. The decision of the Advocate General in Scarlet (Extended) v. SABAM (Case C-70/10) supports this conclusion.

Yesterdays decision in Twentieth Century Fox v. BT [2011] EWHC 1981 (Ch.) is not authority to the contrary. Indeed, that decision admits that the full picture (as a matter of European law) is not yet clear (para. 176) and therefore cannot be taken as a ruling on this point and must be treated as turning on its particular facts.i

Exclusion of the role of the Oireachtas

It is significant that Charleton J. in EMI v. UPC [2010] IEHC 377 referred to any legislative intervention being properly a matter for the Oireachtas. The Opinion of the Advocate General in Scarlet (Extended) v. SABAM (Case C-70/10) similarly referred to a need for legislation in this area to be democratically legitimised (at para. 113).

It would be undesirable in any event for a matter dealing with fundamental rights to be disposed of by way of secondary legislation. It is all the more undesirable in this case, however, given the vague and open-ended nature of the powers involved. This is, in effect, a case of delegation heaped on delegation rather than rules governing blocking and other remedies being made by primary legislation, or even secondary legislation, they are instead effectively being made by delegation to the judiciary. It seems likely that such an open-ended power will ultimately be the subject of judicial criticism as being unworkable.

If we can be of any further assistance please do not hesitate to contact us.

Yours sincerely

TJ McIntyre

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That decision does attempt to distinguish Scarlet (Extended) on the basis that the remedy sought against BT

was narrower and was clear and precise [and] merely requires an existing technical solution which BT already employs for a different purpose (para. 177). With respect, however, this misses the point: Article 10 ECHR requires clarity ex ante as to the circumstances in which injunctions can be ordered and the effect which those injunctions may have. Clarity ex post as to the terms of the order eventually granted is not sufficient.

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