Government considering “three strikes” policy for illegal downloaders

Following the release of the government’s report on the Digital Economy, the Communications minister, Stephen Conroy, has indicated that the government is seriously considering the introduction of a three strikes policy to deter illegal downloaders.

Referring to the current iiNet Federal Court proceedings, a spokeswoman for the minister explained that “depending on the outcome of the case, the Government will determine whether there is a need for legislative change”.  This has been interpreted as a warning that even if iiNet is successful, the government may still change the law so that ISPs will be forced to implement a three strikes policy.  However, this is still really only speculative.

So what could a three strikes policy look like?

Under a typical three strikes or “notice and disconnect” scheme, ISP customers who are alleged to have downloaded copyright material illegally are sent a series of escalating warnings, and can ultimately have their internet disconnected if they continue to download illegally.  Many ISPs have objected to these schemes, arguing that they pit ISPs against their own customers, by requiring them to enforce the private rights of third party copyright owners.  Similarly, consumer rights advocates have expressed their unease over the lack of judicial oversight in such schemes, and are particularly concerned that users could be disconnected on the basis of mere allegations.

International developments

The issue of how best to deter illegal downloaders is not confined to Australia.  As an earlier post indicated, France’s Constitutional Council recently ruled one such three strikes scheme unconstitutional, although the government plans to push ahead with a similar bill, amended to pass constitutional scrutiny.

Meanwhile, the UK has shied away from a three strikes notice and disconnect policy, while in Ireland, ISP Eircom has voluntarily agreed to implement a three strikes policy as part of a settlement in a case brought by copyright owners.

Closer to home, the New Zealand government has released its latest issues paper following its failure to introduce a controversial provision in March this year which would have obligated ISPs to disconnect alleged infringers.  The latest proposal floats the idea of an independent Copyright Tribunal to adjudicate claims of infringement, and introduces a system of fines as an alternative penalty to disconnection, thus addressing some of the main concerns that critics have had with previous proposals.  No doubt, the government will be watching the developments in New Zealand closely to inform their views of how a three strikes policy would work, if at all.

About the Author

Melissa Anderson
A certified chocoholic and avid tennis player, Melissa works as a solicitor in the Sydney IP litigation team. When she’s not brushing up on trade marks, domain names or copyright law, you can generally find her either (i) eating chocolate, (ii) sipping hot chocolate, (iii) searching for her next chocolate fix … or (iv) working off the chocolate on a tennis court!
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