Posted on August 26th, 2009 No comments
It is clear that the word of a Minister should not be regarded as binding, perhaps merely an expression of the state of policy at the time that he (or she) opened their mouth but nothing more than that.
Back in April, the then Minister with responsibility for Intellectual Property, David Lammy, made it clear that the option to implement a ‘three strikes and you’re out’ policy for peer to peer filesharers had been dropped from Government plans incluyding the Digital Britain report. The Minister said that ‘cutting off users was not “the right road” for UK law makers’. David Lammy told ‘The Observer’ that, ‘”It is for the French to determine what is right for them, (referring to the Hadopi law) but for us here we do not believe that would be the right road to go down.”
Then, in June, came the publication of Stephen Carter’s Digital Britain report. This discussed the issue of perceived piracy and the problems of file sharing and suggested that Ofcom should be tasked with the setting up of technical measures to combat persistent filesharers including restricting access etc. At this time, Stephen Carter’s report reflected the thinking espoused by the Minister.
It is now a couple of months later and it would appear that Government policy has taken something of a ‘U’ turn. It would seem that this Government is for turning with the announcement of policy changes that would see Ministers given the power to order the cutting off of Internet access for identified file sharers.
Now this is a major step in a different direction and completely at odds with previous announced policy. Clearly a Minister’s word counts for little (did we really think that it did anyway?). An announcement by the Department for Business Innovation and Skills (Tuesday 25th August) suggests that thinking in relation to policy has now changed and there is a requirement for a faster process than previously discussed together with the addition of the option to cut off Internet access as part of the technical measures. The announcement says, ‘Accordingly a thorough examination of the proportionality and effectiveness of the measure (as with any of the other measures) would have to be undertaken before ISPs would be required to implement it, even if the decision to move to technical measures is taken. As ever we would need to ensure any such measure fully complied with both UK and EU legislation.’
Now this is where we get interesting. Any decision to cut off Internet access could remove access for entirely innocent parties - such as other members of a family using a circuit. The European Parliament and the Commission have made it clear that they view Internet access as an essential human right. Commissioner Redding responding to questions in Brussels said, “The fourth element I would like to underline is the recognition of the right to Internet access. The new rules recognise explicitly that Internet access is a fundamental right such as the freedom of expression and the freedom to access information. The rules therefore provide that any measures taken regarding access to, or use of, services and applications must respect the fundamental rights and freedoms of natural persons, including the right to privacy, freedom of expression and access to information and education as well as due process?”
Now that seems to have made the Commissioner’s view quite clear. Internet access is a fundamental right and any rules must respect fundamental rights and freedoms. Any action to restrict Internet access must be taken by a judge in a court procedure - at which the end user will be the defendant with the right to defend his position and any proposed actions. It cannot be that removal of access is the result of an order by a Secretary of State or by Ofcom without the right of the affected user to challenge the decision. At present, any evidence to suggest illegal activity seems to be based on the detection of an IP address by automated systems operated by or on behalf of rights owners. There are well publicised indications that systems may be open to abuse and that not all IP addresses may be users engaged in illegal activity. There may well be circumstances where the person carrying out infringing activity is doing so using an unsecured wireless connection without the knowledge or permission of the actual circuit owner. Yet, if evidence based on the detected IP address were to be used it would be the innocent user subject to cut-off rather than the actual perpetrator.
So, it appears to be European policy that Internet access is a fundamental right. That cannot be removed without due process - and the process suggested in the revised consultation would not appear to give sufficient safeguards for those not involved in the infringing activity. Any actions taken would seem to face the immediate possibility of a challenge under UK Human Rights legislation and then action in the European Courts.
There is another interesting facet to this new disclosure. A few weeks ago BIS announced consultation on the proposals of the Digital Britain report. The consultation paper was produced and a deadline set for responses. Now, the Dept. has announced that it wishes to change the consultation during the period set for stakeholders and others to respond and has suggested that an extended response period should now be allowed. To change the nature of the consultation after publication would seem to fly in direct contravention of the Government advice and code of practice for consultation.
‘The Crusher’ has to ask why this change has come about. The Government will deny that there is any relation between this announcement and a private dinner at which the Secretary of State, Lord Mandelson, met with US film mogul David Geffen. Geffen is known to have views on piracy and the effects of file sharing on the creative industries. It remains somewhat disconcerting that such a major policy change announcement comes just a few days after such a meeting. Coincidence or just bad planning?
Whatever the real reason this is a real policy blunder by the Government. It is almost certain that any actions to remove Internet access for alleged file-sharing, and by order of the Secretary of State or by Ofcom, would be seen to be highly disproportionate and likely to impact on he human rights of the end user and others. It would appear that the Government has now decided to announce policy changes in the midst of a consultation exercice - contrary to its own guidelines.
This is guaranteed to annoy large swathes of voters - and in the last few months running up to a general election that really is a rather silly thing to do. Perhaps this demonstrates the arrogance of the politicians responding to the views of a rich business interest over those of the electorate. That will be determined no later than June 2010.
However, all of this may be irrelevant - except for the verdict of the electorate on the conduct of this Government - with the imminent decision at the European Court of Justice in a case referred from the UK involving L’Oreal and eBay. The legal news site ‘Outlaw.com’ reports that this case may make any proposed actions by Ofcom irrelevant if it orders that a rights owner can bring an action to injunct an innocent party. The case centres around a possible injunction brought by L’Oreal against eBay to require that party to remove access to infringing materials. If the ECJ is in favour of L’Oreal then it is likely that a music rights owner would simply apply to the UK courts for an injunction against the ISP providing service to an end user. Any costs in defending their position would then fall on the ISP - I suspect that many would simply accept the injunction without the end user having any involvement.
Posted on August 18th, 2009 No comments
After a period of quiet, summer seems to be passing by and the news is beginning to fill with other than the normal ’silly season’ stories. Parliament may still be in recess (will be for some while) and Ministers and others are well away from Westminster - where is the Prime Minister (Alastair Darling is stepping in in Gordon’s absence) and has he had to obtain a CRB clearance to engage in social projects…… umm!
But, work does go on for some and there are a few stories making the headlines.
Back in June, Stephen Carter published the final version of the Digital Britain report. That was much trumpeted and covered elsewhere - we chose to look at another digital report that appeared around the same time, or rather, the Digital Manifesto published by the Childrens Charities Coalition on Internet Safety. Now we have the arrival of the implementation plan for Digital Britain and we can see how the legislation is being planned in order to put into place the various recommendations.
The provisions of faster broadband and universal access have been much covered in the media. The reality is that faster access can only come through a fundamental change in the delivery infrastructure - and that means moving to direct fibre. The plans for a ‘digital tax’ (a levy of 50p per month on all fixed line telephone circuits) seems to have gone quiet……
Other areas have more direct impact on ISPs in the short term. The music industry has campaigned about the problems of piracy and the losses that it suffers as a result of peer to peer file sharing etc. There are more immediate pressures for changes in this area and we can now see that part of the implementation group has been tasked with:
Consultation on proposals to legislate to give Ofcom a duty aimed at reducing copyright infringement
Provide for backstop powers for Ofcom to place additional conditions on ISPs to reduce or prevent online copyright infringement by the application of various technical measures
At the end of the 12 month period there is no significant reduction in unlawful file sharing Ofcom should use its backstop powers
Consultation on the trigger mechanism which needs to give both rights holders and ISPs strong incentives to make the notification system work
There have already been some agreements between ISPs and rights owners and these have resulted in letters being sent to users identified as uploaders of file share materials. This - an implementation of the ‘three strikes’ approach - provides for a step approach when a user is identified as being involved in peer to peer sharing. Practically, identification means users uploading (advertising) materials for download by others. However, the identification is somewhat fraught - there are well recognised possibilities of false seeding of IP addresses and other techniques to swamp rights owners search processes. There are also problems where users have unsecured networks (wireless routers) and are held liable for use by unauthorised users. It is not a legal requirement to secure a network - it may be negligent but that definition may be dependent on the user’s understanding and knowledge of their system.
It seems that the approach recommended by Digital Britain is for ISPs to adopt active packet shaping in order to restrict the performance experience of those identified as being persistent or regular peer to peer users. Whilst this may have an immediate attraction, the reality may well be that larger ISPs may have the capacity and the capability to make this happen - but that the smaller providers may not. Smaller providers may have just one, or perhaps a small number of central pipe connections which may make it difficult to route users to a particular ‘bad boys’ pipe. Some of the smaller users have made specific marketing decisions not to packet shape or to block traffic in order to differentiate themselves - there may be problems in implementing technical solutions which are not currently provided for within the network equipment.
There are other actions within the Digital Britain report to look at the funding structure of the Internet Watch Foundation - and to incorporate its work within pan-European approaches to child abuse content identification and blocking.
Of course, the summer period would not be summer without media scare stories. On Monday 17th August the Daily Telegraph reported that a file sharer had been ordered to pay damages and disbursements of £16,000 by the Patents County Court in London. The Telegraph went on to suggest that parents cold find themselves with substantial charges as a result of file sharing and downloading by their children. The case against the Internet user was brought forward after action on behalf of their client (a games producer) by solicitors Davenport Lyons. Davenports had persuaded the High Court to grant orders requiring ISPs to divulge details of users of particular IP addresses - ISPs will normally be reticent in any such disclosure for fear of contravening the data subjects rights under the Data Protection Act. Davenports had previously acted for a number of rights owners including Atari but this case does now seem to have gone further with a strong deterrent level of fine and disbursement applied.
Other media reports (Daily Mail) suggested that the Business Secretary, Lord Mandelson, had agreed to impose fines on those found to be abusing their Internet access. This story was rapidly denied, ‘A spokeswoman at the Department for Business Innovation and Skills (BIS) told The Register that it was “nonsense” to “speculate” that Mandelson would target teenagers who illegally download music and films.’
It is worth noting that fines can only be issued by a court after a hearing in which the accused has the right to submit a defence. Penalty charges may be applied in other circumstances but these are not ‘fines’. The Magistrates Association expressed concerns (19th August) that the police might ‘abuse’ proposals for new powers to award fixed penalty notices (comments strongly rejected [of course] by the police) - the thought passes our minds that Ofcom may be given powers to impose fixed penalty notices on end users accused of infringing copyright. The Magistrates Association made the comment that fixed penalties are fine for absolute offences but are problematic where there is a subjective interpretation involved. In the case of copyright infringement there may well be good defences - a hijacked network, use by other without the service owners consent or knowledge etc.
But all of the legislative changes to be implemented as part of the Digital Britain Bill are dependent on the
Bill receiving parliamentary time for debate and passage. It is in the Government draft legislative programme for the final session of this parliament - but an election is due by June 2010 (bring it on we say!) and there must be reservations over actual passage of large scale legislation before then.
It does still seem to be ’silly season’.