"Three Strikes and You're Out" Policy Strikes Out
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Monday April 21, 2008
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. My new technology law column (Toronto Star version, homepage version) reports on how, 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 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.
Ole Juul said:
Ole Juul said:
Monday April 21, 2008
We want to enhance competition and investment in this country, and this is why we adopted this policy back in 2008 for the AWS spectrum. Let me say that the price went down by an average of 11% since then, and we will continue this way with the 700 megahertz spectrum. We launched consultation with the industry to make sure that we enhance competition and provide better choice and better rates for our consumers.
Last week I wrote about the National Post seeking $150 licences for posting short excerpts online. It appears that the paper has now dropped the system.Mar.12/13Comments (1)