Seán Sherlock (Cork East, Labour)

As I outlined in my speech, one must have regard to proportionality. The Sabam ruling is such that if somebody were to seek an injunction before a judge, the latter would have to establish that infringement occurred in the first instance. In making such a decision, a judge must have regard to the basic rights that exist. Members articulated the circumstances that arise in this regard with reference to the EU charter of fundamental rights and the rights in the copyright directive. A judge would have to have regard to the facts that there is a copyright holder and that there is an individual ISP, a business, with the right to conduct its business, as is inherent in the EU copyright directive. In other words, the right of the copyright holder is not superior to that of the individual citizen or business.

With regard to seeking an injunction and measuring costs, there is no way of determining the actual cost, even though individuals have come forward with proposals on the cost of a High Court injunction. I would have faith in the fact that the Irish judicial system would have to have regard to the fact that there are specific rights regarding monitoring, especially in light of the Sabam ruling.

On the effect of an ISP, one must ask what is an intermediary. I have outlined this in my speech and will probably not repeat it. It is question of proportionality. If a person is accessing a site such as www.youtube.com and is not acting legally, a court would have to have regard to the need for proportionality. Why would an Irish court shut down an Irish website, potentially with millions of users, because of the actions of one person? One could argue it would be an infringement of the right of the business person to conduct his business. The issue of proportionality, therefore, must come into play. There are certain fundamental rights that must be adhered to. Before an injunction is sought, a judge in Ireland would have to have complete regard for those rights. I hope that answers the question.

See this speech in context