Internet service providers warned over data protection

Internet service providers should be aware of the data protection rights of individuals in their fight against illegal online data sharing, say experts.

Last week UK record labels association, the BPI, reached an agreement with Internet service providers (ISPs) and the government on measures to reduce illegal filesharing. The memorandum of understanding (MOU) places commitments on the recording industry and ISPs to develop consumer education programmes and legal online services allowing users to download legal content for free. In addition, “informative letters” are to be sent to users, identified by the BPI, whose accounts are suspected as being used illegally.

Penelope Thornton, associate in intellectual property, media and technology at Lovells, says the parties to the MOU will need to be careful about the operation of the Data Protection Act 1998 in any action taken against filesharers. “In some cases infringement of copyright by peer-to-peer file sharing can amount to a criminal offence, but personal data which relates to alleged criminal activity is ‘sensitive’ personal data under the Act and can normally be processed only with the explicit consent of the individual unless an appropriate exemption applies,” she says.

The MOU announcement was followed swiftly by the launch of a consultation from the Department for Business Enterprise and Regulatory Reform. The consultation includes proposals for legislative measures to address illicit filesharing, including granting personal data relating to IP addresses to rights holders on request.

Thornton continues, “In the hands of BPI the IP addresses may well not amount to personal data, but it is likely to be different in the case of the ISPs since they can match the address to a known individual.”

While no specific action was detailed for those that ignore the letters, the introduction of the MOU is seen as a response to government threats to legislate. Earlier this year the government suggested it was planning legislation to make it mandatory for ISPs to take action against those guilty of illegal sharing files. Thornton says the government prefers an industry led approach to the issue and that it has denied it will follow the proposed “graduated response” as in France. It may, however, seek alternative, technology based solutions. “Proposed technical measures to be discussed by ISPs, rights holders and Ofcom, such as filtering and marking content to help identify legitimate content, could be effective solutions. However they have been the subject of bitter negotiations between the ISPs and the rights owners for some time, without any resolution,” she says.