Appeared in the Toronto Star on April 21, 2008 as A Swing and A Miss for 'Three Strikes' Policy

The new baseball season is in full swing, yet in recent months the phrase "three strikes and you’re out" has taken on an entirely different meaning on the Internet.  Prodded by content lobby groups, a handful of governments have moved toward requiring Internet service providers to terminate subscribers if they engage in file sharing activities on three occasions.

The policy – occasionally referred to as "graduated response" – received support last fall from French President Nicolas Sarkozy, who pressured the private sector to negotiate an agreement to implement the three strikes system.  The policy soon attracted global attention as the United Kingdom, Japan, and Australia all announced that they were contemplating a similar approach.

In recent weeks, however, it would appear that governments are beginning to have sober second thoughts.  After a Swedish judge recommended adopting the three strikes policy, that country's Ministers of Justice and Culture wrote a public opinion piece setting out their forthcoming policy that explicitly excluded the three strikes model.

Earlier this month, the European Parliament delivered an even stronger rejection.  At issue was the Bono Report on the Cultural Industries, a major cultural policy initiative headed by French Member of Parliament Guy Bono.  While the Bono Report was expected to pave the way for a pan-European three strikes policy, the report may have had the opposite effect.

The primary report received overwhelming support, however, a separate vote explicitly rejected the three strikes model.  Despite the best efforts of the French government to drum up support, the European Parliament concluded that the policy ran counter to "civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness."

In fact, Bono emerged as one of the policy's most outspoken critics, telling the European Parliament that "I am firmly opposed to the position of some Member States, whose repressive measures are dictated by industries that have been unable to change their business model to face necessities imposed by the information society. The cut of Internet access is a disproportionate measure regarding the objectives. It is a sanction with powerful effects, which could have profound repercussions in a society where access to the Internet is an imperative right for social inclusion."

While it remains unclear whether France will continue to pursue a domestic three strikes policy, the European Parliament vote is likely to dampen enthusiasm for the approach throughout Europe.  

The European Parliament decision is part of a broader swing back toward civil liberties protections.  Earlier this year, the European Court of Justice ruled that "European Community law does not require the Member States, in order to ensure the effective protection of copyright, to create obligations to reveal personal notes in the context of civil proceedings." That decision followed an earlier German case that refused to order ISPs to hand over user details to the music industry, as the court concluded that ordering the disclosure of personal information would be "disproportionate."

The European shift toward preserving privacy and free speech rights recognizes the danger of adopting overly aggressive policies that may serve select private interests, but at great risk to other fundamental rights and freedoms. It is also consistent with Canadian law, where a three strikes policy would undoubtedly be subject to a constitutional challenge and where courts have similarly expressed great reluctance at the prospect of sacrificing the privacy rights of Internet users without substantial safeguards.

With the World Economic Forum recently ranking Canada's intellectual property protections in the top half of the G8 (ahead of both the United States and Japan), there appears to be little appetite for the now-discredited three strikes model. Indeed, policy makers may recognize that it would be the failure to protect universal Internet access that would represent the real strikeout.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.