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.
Appeals body
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.
