Cutting off internet infringers: Ireland is different, says judge

Peter Charleton J

The IPKat has already reported on this decision, a little breathlessly, late last night, but you can read it for yourself here: it's yesterday's ruling by Mr Justice Peter Charleton (High Court, Ireland, right) in EMI and others v UPC that there was no basis upon which the owners of sound and video recording copyrights could successfully press the defendant internet service provider to prevent the unauthorised and infringing uses made of materials in which the companies owned the copyright.

Of particular interest to readers are what the judge says at paras 135 to 137 of his decision:

135. There were two prior judgments of the Court in relation to issues related to this case. In EMI Records (Ireland) Limited v. Eircom Limited [2010] IEHC 108, (Unreported [but noted here], High Court, Charleton J., 16th April, 2010), as has been previously stated, a similar action had been brought against Eircom, as the largest internet service provider in the State. This was settled on the basis of a three strike policy that is fully set out in that judgment. The Court was asked to determine the capability of aspects of that settlement with the Data Protection Acts 1988-2003, three issues having been raised in correspondence by the Data Protection Commissioner. In the light of the evidence in this case, and the conclusions that the Court has reached, the Court would wish to make it clear that this judgment is unaffected. I have reconsidered it in the light of the evidence and submissions in this case and I am of the view that the judgment is correct. 

136.A different conclusion arises in relation to the judgment of the Court in EMI (Ireland) Limited v. Eircom Plc [2009] IEHC 411 (Unreported [but mentioned in passing on this blog here], High Court, Charleton J., 24th July, 2009). That judgment was, as the first 80 paragraphs of it indicates, delivered extempore, having heard, as I said, only one side of the case. In settling the litigation, EMI and Eircom agreed that an application would be brought to block access to ‘The Pirate Bay’ website on the facilities of Eircom, as an internet service provider. The conclusion I reached in that judgment, that I was entitled as a matter of law, to block access to that site, was arrived at in the absence of argument to the contrary by Eircom. While Eircom did not consent to the judgment, at the same time, they appeared in court and offered no argument against the analysis in favour of the grant of an injunction: this position of not arguing against the injunction, I understand, was part of the terms of the settlement between those parties. Counsel for Eircom was thus constrained into offering no opposition to the argument. 

137. Having fully considered the issue of blocking a site as variant as The Pirate Bay, I regret that my previous judgment in the matter was wrong. The legislative basis enabling me to act in that way does not exist in Irish law as it exists in other European jurisdictions. The parties to that case may wish to reapply, or they may be content that The Pirate Bay should be blocked through the channels of Eircom.No order as to costs was made in that case, as the application was uncontested and costs were not sought as a matter of consent".