Copyright enforcement measures: the role of the ISPs and the respect of the principle of proportionality
In their effort to enforce a regulation system on the internet, several countries introduced the graduated response system (otherwise known as “three strikes and you’re disconnected”). Since then, it started gaining popularity all over the world whether in a legislated form or in a form of private agreements between major copyright holders and internet service providers. On an international level, the final version of the Anti-Counterfeiting Trade Agreement (ACTA) was published on 3 December 2010. Although it does not directly suggest the application of a graduated response system, it establishes a legal ground on which member states can justify the instauration of such a system.
This paper will discuss the role of the internet service providers in regulating the internet as it is designated by the graduated response system. The tasks entrusted to the providers will then be examined for their accordance with the principle of proportionality. The article will not focus in a particular national legislation, but it will rather provide an analysis of the problematic aspects of the graduated response system using examples of national legislations or accords. The central question is whether fundamental rights are respected by these enforcement measures. Since illegal file sharing has turned from a mere habit to an ideology, the paper will ultimately propose that it would be wise to take a step back not only from the incessant legislation process but also from the war declared against internet.