Viviane Reding said that Spain would break EU law if it allowed
for disconnections without a judge's prior involvement. Her view
adds to the debate about the exact requirements of lawful
disconnection.
Some EU countries, including the UK, are introducing laws that
would force internet service providers (ISPs) to terminate the
connections used by people suspected of engaging in
copyright-infringing music and video file sharing.
The European Parliament today passed a series of EU telecoms law
reforms which included a demand that due process be followed in any
disconnections.
The Parliament had previously insisted on court oversight but
had to tone down its demands after its own legal service advised it
that that demand was out with the Parliament's rights over member
states.
The new proposal says that any measures taken by member states
against users' internet access "shall be subject to adequate
procedural safeguards in conformity with the European Convention
for the Protection of Human Rights and Fundamental Freedoms and
with general principles of Community law, including effective
judicial protection and due process."
It says that "a prior fair and impartial procedure shall be
guaranteed, including the right to be heard of the person of
persons concerned […] The right to an effective and timely judicial
review shall be guaranteed".
There has been some debate on whether or not this has to involve
a court and a judge or whether independent arbitration, such as
that proposed in the UK, would be enough to satisfy the EU law.
Reding said in a speech yesterday, though, that a judge had to be
involved.
"I would like to stress the need for any possible legislative
initiative to comply with the agreement reflected in the Telecoms
Reform Package," she said in a speech in Barcelona. "Spanish
measures that would allow for the cutting off of internet access
without a prior fair and impartial procedure in front of a judge is
certain to run into conflict with European law."
John
MacKenzie, a technology law specialist at Pinsent Masons, the
law firm behind OUT-LAW.COM, has argued that the UK's proposed
solution does not conflict with the just-passed EU law.
The UK 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," he previously said. "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 UK Government last week published the Digital Economy Bill,
which includes provisions to force ISPs to disconnect users accused
of file sharing. It has met with opposition from digital rights
activists and ISPs, but has been welcomed by record labels.
A spokeswoman for the European Commission said that there was
not a black and white rule about exactly who should be involved in
the judicial reviews required by the new law. "Each national
system/law will have to be assessed on a case-by-case basis before
being able to say whether this contradicts or is in conformity with
the new European law," she said.
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