So it's official. The EU has approved legislation that requires "due process" before a file-sharer can be cut off by his ISP, regardless of any 'three-strikes' policy.
The telecoms commissioner, Viviane Reding, is firmly of the view that this means the involvement of a judge and/or a court. As I wrote last week (see below), I'm not convinced of that. And neither is a legal specialist from the British law firm (Pinsent Masons) that publishes Out-law.com, an excellent tech-focused legal newsletter.
John MacKenzie argues that Britain's proposed three-strikes law does not conflict with the just-passed EU law.
As Out-law.com points out, this is because Britain intends to allow cut-off subscribers to appeal to a body set up by Ofcom. If a subscriber appeals, the disconnection will not happen until after the appeal.
"The Directive … will require a process to be followed before disconnection takes place," said MacKenzie. "That gives member states a lot of flexibility for policies like three-strikes-and-you're-out. It doesn't demand a right to a trial before disconnection takes place."
MacKenzie said that Reding's comments do not necessarily change the position because there is some flexibility about exactly what can be meant by a 'judge'.
"When someone is having their electricity supply cut off then there is a warrant granted by a magistrate following the presenting or certain evidence," he said. "The procedure to freeze assets includes a warrant being seen by a judge but that doesn't men you have full blown trial."
"It depends what you mean by 'a judge'," he said. "An arbiter – somebody appointed to decide or deal with these issues – may not be a judge in the classic sense but would be a decision maker and as long as there is a process in place to allow people to fairly and properly to oppose or recall these orders that should comply with European law."
The telecoms commissioner, Viviane Reding, is firmly of the view that this means the involvement of a judge and/or a court. As I wrote last week (see below), I'm not convinced of that. And neither is a legal specialist from the British law firm (Pinsent Masons) that publishes Out-law.com, an excellent tech-focused legal newsletter.
John MacKenzie argues that Britain's proposed three-strikes law does not conflict with the just-passed EU law.
As Out-law.com points out, this is because Britain intends to allow cut-off subscribers to appeal to a body set up by Ofcom. If a subscriber appeals, the disconnection will not happen until after the appeal.
"The Directive … will require a process to be followed before disconnection takes place," said MacKenzie. "That gives member states a lot of flexibility for policies like three-strikes-and-you're-out. It doesn't demand a right to a trial before disconnection takes place."
MacKenzie said that Reding's comments do not necessarily change the position because there is some flexibility about exactly what can be meant by a 'judge'.
"When someone is having their electricity supply cut off then there is a warrant granted by a magistrate following the presenting or certain evidence," he said. "The procedure to freeze assets includes a warrant being seen by a judge but that doesn't men you have full blown trial."
"It depends what you mean by 'a judge'," he said. "An arbiter – somebody appointed to decide or deal with these issues – may not be a judge in the classic sense but would be a decision maker and as long as there is a process in place to allow people to fairly and properly to oppose or recall these orders that should comply with European law."
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