EMI Records (Ireland) Ltd and Others v Data Protection Commissioner

• Jurisdiction: Ireland
• Judge: Mr Justice Charleton
• Judgment Date: 03 July 2013
• Neutral Citation: [2012] IEHC 264
• Court: High Court
• Docket Number: [2012 No. 167 JR]; [S.C. No. 369 of 2012]
• Date: 03 July 2013

EMI Records (Ireland) Ltd & Ors v Data Protection Commissioner

No Redaction Needed

Commercial

Judicial Review

Between

EMI Records (Ireland) Limited Sony Music Entertainment Ireland Limited Universal Music (Ireland) Limited and Warner Music Ireland Limited

applicants

and

The Data Protection Commissioner

respondent

and

Eircom plc

notice party

[2012] IEHC 264

167 JR/2012

The High Court

HUMAN RIGHTS

Privacy

Right to privacy - Illegal downloading and uploading of copyright material - Whether internet subscribers engaging in copyright infringement having right to privacy - Factors when considering whether to grant injunctive relief to prevent infringement of copyright online - European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 (SI 336/2011) - Data Protection Act 1988 (No 25) - Copyright and Related Rights Act 2000 (No 28) - Communications Regulation Act 2002 (No 20) - Data Protection (Amendment) Act 2003 (No 6) - Constitution of Ireland 1937, Article 40.3 - Directives 2000/31/EC, 2001/29/EC, 2002/21/EC, 2002/58/EC & 2004/48/EC - European Convention on Human Rights and Fundamental Freedoms, articles 8 & 10 - Notice quashed (2012/167JR - Charleton J - 27/6/2012) [2012] IEHC 264

EMI Record Ireland Ltd v Data Protection Commissioner

INTELLECTUAL PROPERTY

Copyright

Data protection - Infringement of copyright - Unknown internet subscribers - Applicants notifying notice party of breaching of copyright - Notice party terminating internet service of subscribers repeatedly breaching copyright - Respondent directing notice party to cease scheme with applicants - Whether reasons provided by respondent - Whether respondent obliged to provide reasons - Notice party entitled to appeal direction of respondent - Whether applicants entitled to seek certiorari of respondent's direction - EMI Records (Ireland) Ltd v UPC Communications Ireland Ltd [2010] IEHC 377, (Unrep, Charleton J, 11/10/2010) followed; Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM) (Case C-70/10), (Unrep, ECJ, 24/11/2011); L'Oréal SA v eBay International AG (Case C-324/09). (Unrep, ECJ, 12/7/2011) considered - Data Protection Act 1998 (No 25), s 10 - Notice quashed (2012/167JR - Charleton J - 27/6/2012) [2012] IEHC 264

EMI Record Ireland Ltd v Data Protection Commissioner

Facts: In 2010 the notice party had failed to take account of the clocks adjusting to winter time. As a result, IP addresses that had uploaded copyright material belonging to the plaintiffs were wrongly attributed to a number of individuals. These IP addresses had been identified as part of a scheme maintained by the plaintiffs and the notice party.

An individual wrongly identified as having breached copyright demanded action was taken by the respondent against the notice party. As a result, the notice party was compelled by the respondent to withdraw from the scheme. The plaintiffs now sought judicial review of the respondent"s decision.

Held by Charleton J, that a number of issues arose in the review. Firstly, whether judicial review was appropriate given that the notice party retained a right of statutory appeal against the respondent"s decision? Secondly, had adequate reasons been stated in the enforcement notice served? Finally, was the notice of judicial review was incorrect or issued in excess of jurisdiction?

The Court considered the issues in turn. Judicial review in such circumstances as the instant case was appropriate in limited circumstances. Whilst appropriate deference would be given to a specialist decision maker"s ruling, the Courts were free to form their own opinions. As this case concerned the requirement to give reasons and how statutory powers was to be interpreted, judicial review was available as a remedy.

S 10 of the Data Protection Act 1988 required reasons to be provided in enforcement actions by the respondent. As no reasons whatsoever were provided, the enforcement notice was clearly invalid. Whilst the notice party had a right of appeal, judicial review was the sole remedy to the plaintiffs in a matter where their economic interests were clearly affected. There was therefore no issue of jurisdiction to hear their claim.

The enforcement notice was therefore quashed, and the parties were invited to make submissions on an appeal to the Supreme Court.

EEC DIR 2000/31 ART 22

EEC DIR 2000/31 ART 14

EUROPEAN COMMUNITIES (DIR 2000 31/EC) REGS 2000 SI 68/2003 REG 14

EEC DIR 2000/31 RECITAL 45

EEC DIR 2000/31 ART 12

COPYRIGHT & RELATED RIGHTS ACT 2000 S40(4)

DATA PROTECTION ACT 1988 S2

DATA PROTECTION ACT 1988 2A

DATA PROTECTION ACT 1988 2B

DATA PROTECTION ACT 1988 2D

DATA PROTECTION ACT 1988 2A(1)

DATA PROTECTION ACT 1988 2B(1)

EMI RECORDS v EIRCOM LTD 2010 4 IR 349

SCARLET EXTENDED v SOCIETE BELGE DES AUTERS COMPOSITEURS ET EDITEURS SCLR SABAM C-70/10 UNREP ECJ 24.11.2011

EUROPEAN COMMUNITIES (DIR 2000 31/EC) REGS 2000 SI 68/2003 REG 5(1)

EUROPEAN COMMUNITIES (DIR 2000 31/EC) REGS 2000 SI 68/2003 REG 6

DATA PROTECTION ACT 1988 S2(1)(A)

DATA PROTECTION ACT 1988 S2(D)

DATA PROTECTION ACT 1988 S2(1)(B)

DATA PROTECTION ACT 1988 S2(1)(C)(i)

DATA PROTECTION ACT 1988 S2(1)(C)(ii)

COPYRIGHTS & RELATED RIGHTS ACT 2000 S140

EFE v MIN FOR JUSTICE 2011 2 IR 798

HARRINGTON LTD v BORD PLEANALA UNREP HEDIGAN 23.11.2010 2010/19/4789 2010 IEHC 428

HENRY DENNY & SONS (IRL) LTD v MIN FOR SOCIAL WELFARE 1998 1 IR 34

PHILADELPHIA STORAGE BATTERY CO v CONTROLLER OF INDUSTRIAL & COMMERCIAL PROPERTY 1935 IR 575

DRAMATICO ENTERTAINMENT LTD & ORS v BRITISH SKY BROADCASTING LTD UNREP ARNOLD 9.2.2012 2012 EWHC 268 CH

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EMI RECORDS (IRELAND) LTD & ORS v UPC COMMUNICATIONS IRELAND LTD UNREP CHARLETON 11.10.2010 2010/18/4444 2010 IEHC 377

L'OREAL SA v EBAY C 324/09 12.7.2011 2011 RPC 27 2011 ETMR 52

PRODUCTORES DE MUSICA DE ESPANA (PROMUCICAE) v TELEFONICA DE ESPANA SAU C 275/06 UNREP ECJ 29.1.2008

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 118

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 207

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 262

BONNIER AUDIO AB v PERFECT COMMUNICATION SWEDEN AB C 461/10 UNREP ECJ 19.4.2012

EEC DIR 2006/24 ART 3

EEC DIR 2006/24 ART 5

EEC DIR 2006/24 ART 11

EEC DIR 2002/58 ART 6

SCARLET EXTENDED v SOCIETE BELGE DES AUTERS COMPOSITEURS ET EDITEURS SCLR SABAM C-70/10 UNREP ECJ 24.11.2011

EEC DIR 2000/31 ART 15

EEC DIR 2000/31 ART 12

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 11

BELGISCHE VERENIGING VAN AUTERS COMPONISTEN EN UITGEVERS CVBA (SABAM) v NETLOG NV C-360/10 UNREP ECJ 19.7.2010

TWENTIETH CENTURY FOX FILM CORP & ORS v NEWZBIN 2010 FSR 21

TWENTIETH CENTURY FOX FILM CORP v BRITISH TELECOMMUNICATIONS PLC (NEWZBIN 2) 2012 1 AER 806

GOLDEN EYE INTERNATIONAL LTD & ORS v TELEFONICA UK LTD UNREP ARNOLD 26.3.2012 2012 EWHC 723 (CH)

ROADSHOW FILMS PTY LTD v IINET LTD 2012 5 LRC 52

DATA PROTECTION ACT 1988 S10(4)(A)

CHRISTIAN & ORS v DUBLIN CITY COUNCIL UNREP CLARKE 27.4.2012 2012 IEHC 163

DAVITT v MIN FOR JUSTICE UNREP BARRON 8.2.89 1989/5/1194

PHILPOTT v REGISTRAR OF TITLES 1986 ILRM 499 1985/9/2684

STEFAN v MIN FOR JUSTICE & REFUGEE APPEALS AUTHORITY 2001 4 IR 203

MCGOLDRICK v BORD PLEANALA 1997 I IR 497

2 2 1.0 On Sunday 28 March 2010 all clocks in Ireland and around Europe went forward one hour at 01.00 hours for summer time. On Sunday 31 October 2010 all clocks in Ireland and Europe went back one hour at 02.00 hours for winter time. Eircom plc, the notice party and a major telecommunications and internet service company, ignored the winter time change. That piece of indolence led to this case.

3 3 1.1 For about the previous four months, from August 2010, Eircom had been operating a scheme under a settlement in a prior copyright infringement case whereby the plaintiffs in this case, hereafter referred to as the recording companies, were detecting on the internet those who were uploading their copyright in music and video; they then passed on information consisting only of copyright title, time and temporary IP address to Eircom. That company would then write to their subscribers and remind them that under the Eircom-subscriber contract they had agreed not to use internet access to infringe copyright. As was well publicised after that earlier litigation, after three such infringements the subscriber would lose a week of internet access and, after four, internet service from Eircom would be withdrawn altogether. This would not stop a subscriber seeking service from another internet service provider, of which there are more than a dozen in the State. Such information as to who might be deprived of internet service by any internet service provider is not put on any national register nor is there any equivalent collective internet service provider database.

4 4 1.2 Internet Protocol ("IP") addresses are furnished in their millions by a central agency called Réseaux IP Européens ("RIPE"), an organisation based in Paris, to internet service providers. On subscribing for internet service, a customer gets a router box from a provider and this has a unique number known only to the parties to that contract. Day by day, providers assign IP numbers to their subscribers and these typically change every 24 hours. The Court was told that some large companies like to have a more lasting IP address, but there is no evidence of that here. When a subscriber uploads or downloads a track without copyright permission on a peer-to-peer swarm of internet users, a file hash attaches to each piece of the track and this has attached to it that temporary IP number. In Ireland, the recording companies, through an agency, are on the...