Problems with the Digital Economy Bill, Part 1
(This is part 1. Depending upon how much effort I can be bothered to expend on this, there may be many).
The Digital Economy Bill implements a “three strikes” policy as a set of amendments to the Communications Act 2003. It does this by:
- requiring ISPs to pass on notifications it receives from rightsholders to its customers — 124A Obligation to notify subscribers of copyright infringement reports
- requiring ISPs to record the details of those who it’s passed notifications to
- requiring ISPs to pass, without revealing the identities of those people, information about all of those people who have been notified more than a certain number of times (e.g., three times) — 124B Obligation to provide copyright infringement lists to copyright owners
The rightsholders can then petition a court to compel the ISPs to reveal the identities of those people, if they wish to.
“Enforcement action” is specified by way of a code of practice — 124C Approval of code about the initial obligations, approved by OFCOM as it sees fit. The Bill includes an initial code of practice — 124D Initial obligations code by OFCOM in the absence of an approved code. Any code approved by OFCOM must meet criteria specified in the bill — 124E Contents of initial obligations code.
Specifically:
(4) The requirements concerning enforcement and related matters are—
(a) that OFCOM or another person has, under the code, the functions of administering and enforcing it, including the function of resolving copyright infringement disputes;
(b) that any such other person is sufficiently independent of internet service providers and copyright owners;
(c) that there is a person who, under the code, has the function of determining subscriber appeals;
(d) that that person is sufficiently independent of internet service providers, copyright owners and OFCOM; and
(e) that there are adequate arrangements under the code for the costs of the carrying out by a person mentioned in paragraph (a) or (c) of functions in relation to the code to be met by internet service providers and copyright owners.
A later section — 124G Obligations to limit internet access: assessment and preparation — specifies that the Secretary of State may instruct OFCOM to compel ISPs to impose technical measures, which:—
(a) limits the speed or other capacity of the service provided to a subscriber;
(b) prevents a subscriber from using the service to gain access to particular material, or limits such use;
(c) suspends the service provided to a subscriber; or
(d) limits the service provided to a subscriber in another way.
The Secretary of State may do this at any point, but “The Secretary of State must lay before Parliament any direction under this section.”
I’ve yet to see:
- How ISPs should deal with the situation where they have no contact details for the subscriber
- Whether a notification can be contested
- If a notification can be contested, whether those undergoing that process are included in the list which may be supplied to rights-holders
- What the evidence-gathering requirements are
- Who will judge the evidence provided and make a determination as to whether it is accurate, reasonable, and solid in its foundations
- Whether such procedures will incur cost to the subscriber, or be so arduous as to be worthless
- Any definition of the terms “internet”, “subscriber”, “internet service provider” and “internet access service”
- Any indication from BIS as to how individual rights-holders may report infringing activity
- What defence somebody might have when they are accused of “allowing another person to use the service, and that other person has infringed the owner’s copyright by means of the service”
Moreover, there is specifically no onus upon the rights-holders to establish proof that infringement has occurred: this is why rights-holders are not in favour of court proceedings. Instead, they will be able to present evidence with a presumption of guilt; the onus is then upon the consumer to prove that they did not infringe.
