A good friend, Miquel Peguera from Spanish Universitat Oberta de Catalunya, just reported what is probably the first private litigation, where an access provider was sued to disconnect its subscribers from the Internet. Although some Nordic countries already earlier reported cases where access providers were sued to disconnect different providers of allegedly infringing services, Promusicae v. R Cable y Telecomunicaciones Galicia appears to be the first case, when the targeted person is a private user. The legal basis used is of course in(famous) provision on injunctions against (innocent) intermediaries set in Art. 8(3) of the InfoSoc that was transposed to Articles 138 and 139(1)(h) of the Spanish Copyright Act. Miquel writes about the background:
The action was brought by Promusicae, an association of Spanish music producers, along with the main music labels operating in Spain. Aided by DtecNet, an anti-piracy firm, Promusicae learned of an internet user who was making available more than five thousand music files in his hard drive shared folder, using the P2P network Direct Connect. [..] It was not possible to find out the user’s real identity as ISPs in Spain are not obliged to reveal the identity of their users for purposes of civil lawsuits. Not knowing the identity of the file sharer, the plaintiffs brought the case directly and exclusively against the ISP, asking for an injunction under articles 138 and 139.1.h) of the Spanish Copyright Act which allow right holders to seek injunctions against intermediaries whose services are used by a third party to infringe copyright. The requested injunction consisted of suspending the provision of internet access to the infringer.
Miquel also writes that the disconnected user was not part of the proceedings and the court did not assess the proportionality of its injunction. This case is striking in several respects (not that such injunctions were not anticipated). Some of my readers know that I constantly criticize website blocking injunctions for not respecting right to a fair trail. Consider that very same problem here and maybe you start agreeing with me. A user is disconnected from the Internet, without having a possibility to defend himself as to
i) existence of an infringement (e.g. what if kids committed that infringement, and not a subscriber),
ii) validity and legality of the evidence (can we really rely on one sided submission? who will scrutinize whether they were legally acquired?),
iii) proportionality (is a full-time disconnection a proportionate response? what about private and business life of an individual and the household dependent on that access? what if the father of the kids works from home for instance?)
Even more, also without the possibility to challenge such a disconnection!
For exactly these reasons, as I argued in my paper, the Spanish court should have rejected the application, unless the right to fair trail of the user was guaranteed. Injunctions against intermediaries can not be exercised in a way that undermines the values of affected individuals.
This case is also interesting from an another viewpoint. It really reminds in(famous) French disconnecting laws. Unlike HADOPI, however, this is a privately litigated disconnecting injunction. As Miquel also notes, the disconnected user can now still subscribe with other access providers. It has to be noted that legal basis makes it very difficult to invoke a disconnecting injunction at once (like with website blocking) against all the access provider in a country for instance. This is because the language of Art. 8(3) requires that intermediaries services are used by a third party to infringe. Although difficult, it is not impossible to argue that other access providers were also used by the infringer. This is because file-sharers for instance, communicate the works to subscribers of other access providers. In this way, their services are used by the infringer to infringe as well (although in a different way). As a consequence, it would be possible to sue the subscribers access provider and at the same time also other access providers for a disconnection [I hope that I just did not give an advice to some zealous plaintiffs].
Suing all the access provider in a country at once, however, would make such disconnecting injunctions even more problematic. Justifying them as to their proportionality in collision with other human rights would be extremely difficult, even impossible, also thanks to the Internet case-law of the ECHR.
The Spanish case exhibits an another possible stream of litigations for the future. If a right to fair trail and proper consideration of proportionality won't be embedded into the system of deciding about these injunctions, the injunctions can have a disastrous consequences. More disastrous than any website blocking injunctions ever had.