Industry and human rights campaigners united in opposition to "three strikes" plan

Commentators argue illegal downloaders should be given access to judicial process

Business secretary Lord Mandelson's plan for a “three strikes” law to tackle illegal downloading came under fire this week from various quarters.

Mandelson wants computers that are used to illegally download or share copyrighted content to be cut off the internet after three offences – even if the computer's owner is not the guilty party. Under his plan, internet service providers must first send warning letters to suspected offenders before they can pull the plug.

However, following Mandelson’s proposals the EU ruled last week that citizens' internet access can be restricted if necessary, but only after a " fair and impartial procedure including the user's right to be heard".

The UK government argues that Mandelson’s plan allows for this because ISPs would have to send customers a series of notifications before they are able to cut off internet access, and there will also be an appeals process that will allow individuals to challenge any disconnnection order.

Yet critics of Mandelson’s proposals argue the EU ruling effectively means the three strikes plan is dead in the water, because it punishes suspects without first proving guilt through an impartial legal process.

Scott Fairbairn, a specialist in telecoms and intellectual property law at CMS Cameron McKenna, said, “The recently agreed wording in the draft EU Telecoms Package is clear. Rights holders cannot act as judge and jury in these matters. They cannot simply instruct ISPs to disconnect their customers or restrict their internet connections. In no way can that be considered to be a ‘fair and impartial’ procedure. At the very least there would need to be some kind of independent and impartial tribunal to consider the merits of each case."

During V3.co.uk’s Summit on Information Overload this week, representatives from ISPs, human rights groups, new model online music service providers and the British Phonographic Industry (BPI) argued that Mandelson’s proposals were not needed, were too draconian and would do more harm than good.

Open Rights Group (ORG) chief executive Jim Killock pointed out that since the arrival of new service models, such as Spotify, the BBC iPlayer and Sky Songs, that provide online copyrighted content legally, illegal downloading has almost been “cut in half”.

“I think that’s the case closed. There is no reason to have some huge stick,” he said.

Killock suggested Mandelson’s proposals would cost millions of pounds to implement, which may turn out to be more than the amount rights holders are losing.

“The measures could turn out to be a good subsidiary for the Royal Mail but I can’t see who else it will be benefiting – certainly not the music companies.”