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The Digital Economy Act 2010 received Royal Assent last week. It requires Ofcom, the UK communications regulator, to introduce “initial measures” aimed at reducing unlawful online file-sharing through peer-to-peer networks.
Two initial obligations will be placed on qualifying internet service providers (ISPs), who will be required:
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to notify subscribers of allegations made by copyright owners that their account has been used for unlawful file-sharing; and
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to maintain a list of the subscribers who receive multiple, unchallenged notifications. |
Subscribers have to be given sufficient information in any notification to enable them to challenge the basis on which the notification has been sent. They must also have access to a robust and effective appeals mechanism. Details of subscribers who receive multiple, unchallenged notifications may be passed to relevant copyright owners, who may then pursue legal action, but any transfer of personal information will first require a court order, and the processing of subscriber data must comply with data protection legislation.
If, however, the initial measures fail to reduce levels of unlawful file-sharing significantly, the Secretary of State can require ISPs to implement technical measures against serious repeat infringers. Technical measures include limiting the speed or other capacity of the service provided to a subscriber, preventing a subscriber from using the service to gain access to particular material or limiting such use, suspending the service provided to a subscriber, or limiting the service provided to a subscriber in another way. Many have questioned the wisdom of leaving such broad powers in the hands of the Secretary of State (whoever he, or she, may be). During the passage of the Bill through Parliament, some commentators expressed outrage at the potential for infringement of innocent subscribers’ rights: this appears a little over-egged, as the Act underlines the need for proportionate processes and appropriate means of redress.
Ofcom is responsible for introducing the initial measures and has announced that it is proposing to do so by approving, implementing and enforcing a code of practice. It is exploring the feasibility of an industry-drafted code and, to kick-start the process, has already called a meeting tomorrow for stakeholders (including rights-holders, ISPs and consumer groups). If such a code does not have the support of a sufficiently wide range of stakeholders to be credible, or if it is not submitted to Ofcom in time to allow Ofcom to satisfy the deadline for implementation, Ofcom will itself draft an appropriate code and seek input from all stakeholders. The draft code has to be published for consultation by no later than May, submitted to the European Commission for approval by the end of September, and has to come into force by the end of 2010.
Once the code of practice has been implemented, Ofcom will also be responsible for providing quarterly reports to the Secretary of State, estimating levels of unlawful file-sharing and assessing the extent of legal action by copyright owners, as well as reporting annually on a broader range of factors, including consumer education campaigns and the availability of attractive and lawful alternative services.
It remains to be seen whether the measures contained in Ofcom’s code will be given real teeth. In the first instance, illegal file-sharers may find receiving a notice in the prescribed form more like being savaged by the proverbial dead sheep.
Eleanor Steyn
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