TalkTalk rips apart government piracy plans

Mandelson risks falling foul of EU law

ISP TalkTalk has said that new EU telecoms regulations will make it impossible for media creators to push for suspected illegal filesharers and downloaders to be disconnected, without first proving guilt through an impartial legal process.

TalkTalk disputes business secretary Lord Mandelson's claims that it will be simple to remove filesharers and downloaders from the internet after nothing more than a couple of strongly worded warnings. In a statement the firm said that new EU rules on electronic communications would prevent this.

The EU has said that any measures taken against users must be done so with " due respect for the principle of presumption of innocence and the right to privacy... A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned". Lawyers working for TalkTalk believe this to be a blow against the government's plans.

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 as article 1(3)a of the new Framework Directive demands.

“At the very least there would need to be some kind of independent and impartial tribunal to consider the merits of each case. If such an essential safeguard is not part of the UK measures then BIS would be in contravention of the new European law.”

Andrew Heaney, director of strategy and regulation at TalkTalk, which is running a campaign against the government plans, and has started a petition against them, added that nobody should be disconnected unless “it is established whether they broke the law through an impartial legal process starting with a presumption of innocence".

"The accuser has to prove guilt and if guilt is established then any penalty must be tailored to fit the individual circumstances," he added.

"Although the new rules are not yet UK law, we call on the government to respect the spirit of what is intended and to drop its draconian plans to disconnect users without a proper judicial process.”