TalkTalk vows resistance as digital bill becomes law

TalkTalk will fight in court any attempt to have it disconnect one of its subscribers for unlawful file-sharing, the ISP said on Thursday, as the Digital Economy Act 2010 became law.

The bundle of legislation, previously known as the Digital Economy Bill, saw a final round of debate in the House of Lords on Thursday and then gained royal assent. The Lords briefly examined and approved only the amendments that were added in the House of Commons after the initial period of debate by peers.

In a blog post, TalkTalk regulatory chief Andrew Heaney pledged that the UK's biggest ISP would resist the heaviest sanctions in the act.

"If we are instructed to disconnect an account due to alleged copyright infringement, we will refuse to do so and tell the rights holders we'll see them in court," he wrote.

On Friday, Heaney reiterated to ZDNet UK that TalkTalk would refuse to disconnect customers "unless a court ordered it". Although the act already ensures that a rights holder would need a court order to extract the identities of subscribers from ISPs, it does not require a court order for technical measures to be enforced.

Heaney confirmed that, although his blog post referred to the period before the 6 May general election, TalkTalk's pledge applied to disconnection requests made at any time, even two years from now.

TalkTalk will resist requests for both account suspension and disconnection, Heaney said. The government has at times attempted to draw a distinction between the two sanctions.

Heaney also noted that while scrutiny by the Lords and Commons had improved the terms of the act, when compared with those originally proposed by the government, it was still flawed.

"Many draconian proposals remain, such as the responsibility on customers to protect their home networks from hacking at a collective cost of hundreds of millions of pounds a year, the presumption that they are guilty unless they can prove themselves innocent and, as in China, the potential for legitimate search engines and websites to be blocked," Heaney wrote.

"The hoped-for benefits in legitimate sales will not materialise as file-sharers will simply switch to other undetectable methods to get content for free," he added.

The act outlines, among other things, a new copyright enforcement regime for the UK. At the end of 2010, a 12-month period will begin in which ISPs will have to send letters to those of their customers who are accused by rights-holders of copyright infringement.

After those 12 months have passed, Ofcom will decide whether this letter-writing campaign has worked; the act says infringement must be cut by 70 percent for this to be the case. If this reduction is not reached, the regulator must draw up a code detailing new sanctions against alleged infringers. Possible measures could include bandwidth throttling, protocol blocking or account suspension.

A spokesman for O2 told ZDNet UK on Friday that the letter-writing campaign would probably work. However, he said, if O2 is ordered to disconnect its users, it will do so "with a heavy heart".

"If the government, at some point in the future, decide that letter-writing is not working, and they use their legal powers to force us to implement some form of technical measures, whether that is bandwidth capping or disconnection, we're duty bound to comply with the law," O2's spokesman said. He would not say, however, whether O2 would try to challenge disconnection orders in court.

BT said that its priority was to ensure that its customers are "treated fairly and appropriately".

"We remain concerned about customers having access to a fair process, rather than being presumed guilty on accusation," the company said. "We will continue to work to minimise the potential negative consequences for our customers."

Virgin Media said in a statement on Friday that "any legislative measures need to work alongside innovative, new commercial solutions if they are to truly tackle the issue and have an impact on consumer behaviour". However, like BT, Virgin Media did not say whether it would challenge disconnection orders in court.