The Supreme Court has upheld a High Court decision quashing a Data Protection Commissioner notice that ordered Eircom to stop operating a system aimed at responding to alleged online copyright infringement.
EMI Records Ireland, Sony Music Entertainment Ireland, Universal Music Ireland and Warner Music Ireland had previously sued Eircom over alleged unauthorised sharing of copyrighted music through its internet service. That litigation was settled through a Graduated Response Protocol.
Under the protocol, record companies supplied Eircom with IP addresses linked to alleged infringement. Eircom could identify the relevant subscriber and issue warnings. Repeated infringements could ultimately result in withdrawal of internet access.
The Data Protection Commissioner had concerns about the protocol. Following a subscriber complaint, he issued an Enforcement Notice on 5 December 2011 requiring Eircom to cease operating it, destroy customer data held under the scheme and take steps to comply with data protection law.
Eircom appealed to the Circuit Court. The record companies sought to participate but later brought judicial review proceedings. The High Court quashed the notice because it contained no reasons.
On appeal, Mr Justice Clarke held that judicial review was available in the particular circumstances. The record companies had no direct statutory right of appeal and their ability to participate in Eircom's appeal depended on being joined. The Commissioner's initial opposition to their involvement and uncertainty about the scope of the appeal were also relevant.
The Supreme Court separately held that the Enforcement Notice breached the statutory obligation to specify why the Commissioner considered data protection law had been contravened. The reasons could not simply be left to inference from surrounding correspondence or proceedings.
The appeal was dismissed and the High Court order affirmed. The judgment did not decide the wider dispute over whether the protocol itself was compatible with privacy, copyright and EU law.