Digital rights campaigners have called on Ofcom to scrap the work it has been doing on implementing the Digital Economy Act and start again, saying it has not sufficiently outlined the standards of evidence needed to identify copyright infringers.
The communications regulator began a public consulation in June on a draft code outlining the initial obligations for rights holders and internet service providers (ISPs) under the Digital Economy Act. The code explains how rights holders should tell ISPs that their customers are infringing on copyright, how the ISPs should then notify the suspected culprits that the infringements have been spotted, and how the ISPs should ultimately identify repeat infringers to rights holders.
On Thursday, the Open Rights Group called for a halt to the consultation, saying it is invalid because the draft initial obligation code is incomplete according to the requirements of the Digital Economy Act itself. The code "misses vital requirements [of the act] to outline the standards of evidence", the group said in a statement.
The Open Rights Group, a group of digital rights activists, is the organiser of major campaign against the copyright crackdown legislation in the Digital Economy Act.
"Ofcom's proposal denies us the ability to check whether any of the evidence is trustworthy," the group's chief Jim Killock said in the statement. "Instead, copyright holders and internet service providers will just self-certify that everything's OK. If they get it wrong, there's no penalty. The act requires the evidential standards to be defined, but Ofcom have passed the buck. How is anyone meant to trust this code if we can't see how the evidence is gathered or checked?"
Killock called for "a new consultation on a new code, that is compliant with the act" in the statement. He also said that the draft code does not comply with the act's requirements for "proper thresholds for identifying serious infringers, the appeals process and the requirements for standard information in letters".
Speaking to ZDNet UK on Thursday, Killock explained that the evidence he was referring to was that for detecting that copyright had been infringed, and matching the resulting infringement report with a specific person.
"Neither are set out in the code," he said, adding that the the Open Rights Group "might well" launch a legal challenge to the code if it is confirmed without these details.
Ofcom told ZDNet UK that the Open Rights Group is "welcome to respond to the consultation, and we will consider all the responses we receive". The consultation ends in a week's time.
In response to the group's argument that there is a lack of evidential standards requirements in the draft code, Ofcom said these requirements are included, "in as much as ISPs and rights holders will need to submit quality assurance reports".
"We can get the reports audited by third parties and require that [ISPs and rights holders] amend their processes," an Ofcom spokesperson said. "We can fine them £250k if we ask them to amend their processes and they don't."
The initial obligations code is separate from a later code that Ofcom will have to iron out. That code will cover the penalties for repeat infringers, such as bandwidth throttling or disconnection. However, even the process outlined in the initial obligations code would lead to rights holders getting the details of repeat infringers, which would make it possible to sue them.