People accused of unlawful file-sharing under the Digital Economy Act have seen their grounds for appeal shrink, under a new draft code released by Ofcom.
People accused of copyright infringement will have fewer grounds for appeal under Ofcom's new draft code for implementing the Digital Economy Act. Image credit: Jon Yeomans
On Tuesday, after many delays, the telecoms regulator published the draft code (PDF) for implementing the Digital Economy Act (DEA), opening it up for consultation. In its original draft two years ago, Ofcom said people should be able to appeal on any basis they like. However, they will now be restricted to the grounds set out in the legislation itself.
"On the instruction of government, we have removed the ability for subscribers to appeal on any other ground on which they choose to rely," the regulator said.
Ofcom had initially called for all grounds to be considered because online infringement is "slightly unknown territory", a spokesman for the regulator explained.
"It is hard to predict what grounds might be reasonable in future, given the advance of technology," he told ZDNet UK. "But the government has asked us to restrict the appeals process." He said the order came through in July 2011.
The Digital Economy Act, passed into law
in April 2010, introduced a tougher copyright scheme with provisions to block websites hosting pirated content, as
well as getting ISPs to write letters to suspected file-sharers using
their connections. However, Ofcom found the site-blocking plans were
unworkable, and it has complained that "drafting the code itself has
[been] a very complex task".
Under the terms of the legislation, acceptable grounds for appeal include procedural problems. These include the 'infringement' not actually being a copyright violation at all, or the subscriber being incorrectly linked to the relevant IP address.
Other than that, accused internet subscribers will have to somehow prove that they were not responsible for the piracy and that they have secured their networks adequately. Otherwise, people will have to show that the rights holder or ISP somehow breached Ofcom's code themselves.
Under Ofcom's new proposals, rights holders will need to get approval from the regulator for the procedures they use to collect evidence against suspected file-sharers. However, an appeals body — which is yet to be established — will judge the quality of that evidence, when used to accuse people of infringement.
On the instruction of government, we have removed the ability for subscribers to appeal on any other ground on which they choose to rely.– Ofcom
This body — and not Ofcom — will decide how high-quality the evidence provided in defence by subscribers will have to be.
"We consider that the appeals body should be able to impose an objective standard of reasonableness and have therefore removed the requirement proposed in our consultation that it should take into account the technical ability and knowledge of the subscriber in making its determination," Ofcom said.
Also, the code now says that people have 20 days to file an appeal after getting a notification of infringement from their ISP; before, there was no limit.
Appeals system a 'joke'
Open Rights Group chief Jim Killock said the appeals — each of which will cost the accused consumer £20, refundable if successful — as a "a joke".
"The government has decided that 'I didn't do it' is not a defence," Killock said in a statement. "Some people will almost certainly end up in court having done nothing wrong."
Killock highlighted the fact that commercial Wi-Fi hotspot
operators are exempt from having to run a notifications system, due to
their relatively small size. However, pubs, cafes and similar businesses running individual hotspots may
end up defending themselves against infringement
accusations, he noted.
In its new draft code, the regulator sidestepped this issue to some extent. It said the appeals body will determine whether copyright infringement carried out over such networks is the fault of the user or the hotspot owner.
Copyright infringement reports
It will take a while to set up the appeals body and for ISPs to establish their own systems for processing reports of copyright infringements from rights holders, Ofcom noted. But by 1 March, 2014, Ofcom expects these systems will be in place and rights holders will be able to start sending ISPs copyright infringement reports (CIRs), noting which IP addresses and port numbers are associated with unlawful file-sharing.
The government has decided that 'I didn't do it' is not a defence. Some people will almost certainly end up in court having done nothing wrong.– Jim Killock, Open Rights Group
The ISPs will have to notify the relevant customer each time they get a CIR associated with their account. Ofcom originally proposed doing this using a mix of email and registered mail, but has now settled on requiring ISPs to send each notification by first-class mail. It also now wants the letters to explicitly say how many CIRs are associated with the subscriber's account.
After three notifications within a year, the ISP must add the customer to an anonymised list, which is then sent to the rights holder. If the copyright owner wants to take action, they must apply for a court order to force the ISPs to reveal the identities of the people on the list.
The code does not lay out what the next step is in the process after that. It wants to run the letter-writing campaign for a year, first — if that does not drastically cut unlawful file-sharing, the secretary of state will have the power to introduce punishments such as account suspension.
Who will foot the bill?
Ofcom's new consultation will close on 26 July. The regulator also launched a separate consultation on Tuesday, dealing with how the costs of implementing the DEA scheme will be split. That consultation will close on 18 September.
The issue of costs is largely what held up the formulation of the new draft code in the first place. According to Ofcom's new proposals, rights holders will have to pay all of Ofcom's costs and all the ISPs' fixed costs for processing reports of copyright infringement, and 75 percent of the ISPs' variable costs.
The rights holders will cover these costs through a notification fee. This is set at one level for the biggest ISPs (BT, Virgin, TalkTalk and Sky), and at a lower level for the fixed-line broadband operations of O2 and Everything Everywhere.
The cost to rights holders of pursuing copyright infringement will not be low: depending on the numbers of reports generated and the size of the ISP, rights holders will have to cover costs of between £7.20 and £45.10 per CIR.