British ISP TalkTalk has threatened legal action over Lord Mandelson's plan for a three-strike policy against file-sharers. The second largest ISP in the UK believes the plan constitutes an infringement of human rights as the plan is "based on the principle of guilty until proven innocent".
BT, the largest ISP in the UK said that it "remains concerned" about the plans and is "interested to hear whether or not customers will have some form of fair legal hearing before their broadband supplier is required to take any action against them".
TalkTalk are major opponents to the plans, with the company demonstrating in a stunt earlier this month how unsecured wi-fi connections could be used to download music illegally while placing the blame at someone else's door.
"The approach is based on the principle of 'guilty until proven innocent' and substitutes proper judicial process for a kangaroo court," said Andrew Heaney, the executive director of strategy and regulation at TalkTalk. "We know this approach will lead to wrongful accusations."
According to the Guardian, the plans will initially focus on simply sending warning letters to suspected offenders. However, if a 70% reduction is not achieved by July 2011, the plans will move to the second stage - suspending the accounts of suspected offenders after two warnings. Although disconnected users would be able to appeal, it does not appear that the accusations would have to be proved in a court of law.
"If the government moves to stage two we would consider that extra-judicial technical measures and would look to appeal the decision [to the courts] because it infringes human rights," Heaney said. "TalkTalk will continue to resist any attempts to make it impose technical measures on its customers unless directed to do so by a court or recognised tribunal."
Head of telecoms law at legal firm CMS Cameron McKenna, Chris Watson said that appealing a decision would be "very different to the legal safeguards that normally apply to the determination of the infringement of intellectual property rights and it may be incompatible with the European convention on human rights".
However, Tony Ballard, a partner at media and entertainment law firm Harbottle & Lewis, believes it is not a breach of human rights.
He added, "This issue over whether removing someone's internet access breaches some fundamental right has been quite clearly settled by the European court of justice. It ruled in a Spanish filesharing case last year that a user's fundamental rights are not absolute but have to be weighed against the rights of others, including copyright owners.
"The key questions are going to be around how the ISPs will manage the burden of proof, who is going to be responsible for the final decision to deny someone access to the internet and how that denial can be challenged in court."