In providing a service over the internet into other EU countries, from a website hosted in Ireland, an internet service provider will typically want to ensure that if there is a dispute with a user of the service, that the dispute can be litigated in Ireland.
The Brussels Regulation (which determines which courts have jurisdiction in civil and commercial disputes between companies and individuals) at article 2 provides (subject to some exceptions including that set out in article 23) that a person (legal or natural) may only be sued in the member state in which he or she is domiciled.
One of the issues that a previous decision of the European court of justice had argued, was that an EU member state court could have exclusive jurisdiction where there was a validly concluded jurisdiction clause, even where there was a dispute as to the validity of the agreement in which the clause was included.
The judgement provides some encouragement to web site owners, that if their web site terms are sufficiently well drafted (including incorporating a home state jurisdiction clause), and are brought properly to the attention of site users, that the onerous provision of article 2 of the Brussels Regulation can be avoided and home state jurisdiction maintained. It remains to be seen whether the Supreme Court will uphold this decision.
In a recent out of court settlement between Eircom and four multinational recorded music distributors, Eircom agreed to a three stage procedure to discourage Eircom customers from illegally availing of material copyrighted to the music distributors via peer to peer networks.
The Irish Internet Association holds that its members that provide internet services (specifically DSL and broadband) should not be obliged to act as wardens of the music distributors’ copyright. Their role and their business strategy is to provide high speed and reliable services to their customers.
The Irish Internet Association believes that as long as no illegal activity takes place the ISPs and their customers should be left to do this business. The IIA do not condone the illegal sharing of copyrighted material but are concerned by the fact that a private out of court settlement is the basis for a major shift in the terms and conditions of consumers’ access to the internet in Ireland.
Furthermore the fact that this correspondence was sent to companies among the IIA’s membership who do not perform the role of ISP is a cause for concern. It has been brought to our attention that IIA members who offer web hosting services have been contacted by solicitors acting on behalf of the music distributors. The terms of the letter state that proceedings will commence against the recipient if a positive response is not received. The IIA feels that this approach is heavy handed and will only serve to constrain dialogue amongst the affected parties. The IIA advises any of our members who have received a letter from the solicitors representing these music distributors to contact their solicitors directly instructing them to clarify their function to the music distributors and to release them from the legal action described in the correspondence.
For more information please contact Roseanne Smith, Communications Manager at members at iia dot ie
Statutory Instrument No. 526 of 2008 which has now come into effect amends Statutory Instrument No. 535 of 2003 which has been in force since November 2003. Amongst the changes in the new Statutory Instrument are:
An increase from €3,000 to €5,000 in the penalty for a summary offence in respect of a contravention of the regulation relating to unsolicited communications.
The creation of an indictable offence for a contravention of the regulation relating to unsolicited communications. Where the person tried is a body corporate the fine imposed may not exceed €250,000 or, if 10% of the turnover of the person is greater than that amount, an amount equal to that percentage. Where the person tried is a natural person, the fine imposed may not exceed €50,000.
Provision for the prosecution of an officer of a body corporate for an offence under the regulations whether or not the body corporate itself has been proceeded against or been convicted of the offence committed by the body.
In relation to offences concerning the contravention of the regulation relating to unsolicited communications if, in court proceedings concerning such offences, the question of whether or not a subscriber consented to receiving an unsolicited communication is in issue, the onus of establishing that the subscriber consented will lie on the defendant.
Speaking today, Billy Hawkes said: "The signing of these Regulations by the Minister is an important and significant step in the fight against unsolicited communications for marketing purposes. I welcome the increase in penalties which have come into effect I am confident that the strengthening of the law in this area will help me in my task to enforce the regulations concerning unsolicited communications. I want to take this opportunity to remind persons engaged in direct marketing activities that my Office continues to pay close attention to the whole area of unsolicited communications by telephone, fax, email and text message. The new regulations, together with the serving of a considerable volume of summonses by my Office in the past fifteen months, serve to send a strong message to all involved in direct marketing about the necessity of compliance with the law."
Concluding, the Commissioner said: "I want, in particular, to send a message to all involved in business to familiarise themselves with the law which applies to unsolicited communications for direct marketing purposes. Increasingly, in this period of economic downturn, my Office is receiving complaints about businesses making unsolicited contact with their past customers for marketing purposes. In many cases, such contact is unlawful and, if carried out by telephone, text message or email it may be a criminal offence. Ignorance of the law is not an acceptable excuse for non-compliance and I will have no hesitation in applying the full force of the new regulations to offenders."