The UK Government consultation on proposed peer-to-peer (P2P) file sharing legislation, issued following the Digital Britain report, has been controversially amended to include the possibility of suspending internet access for repeat infringement.
The Final Digital Britain Report was published in June 2009. This followed publication of an Interim Report, a November 2008 Government consultation on P2P file sharing legislative options and experience with a Memorandum of Understanding entered into at the same time between UK music and film interests and six of the UK’s largest ISPs (see previous story here) .
The final report outlines a number of policies to deal with illegal P2P file sharing. The most significant proposal is a graduated response by Ofcom, the UK communications regulator, which aims to reduce such illegal activity by 70%. Ofcom would be empowered to require ISPs to notify alleged infringers that their conduct is unlawful and to collect evidence on serious repeat infringers. If, after 12 months, the 70% target is not achieved, Ofcom would have reserve powers to impose technical measures on ISPs to deal with repeat offenders, such as bandwidth reduction or protocol blocking. These obligations would be underpinned by a detailed code of practice. Other softer proposals involve encouraging legal markets for downloading and educating consumers in the law of copyright.
Following the Digital Britain report, the Government published a further consultation on 16 June 2009 setting out its legislative proposals to deal with illegal file sharing. The consultation focuses on the legislation to impose obligations on ISPs and, in particular, the balance between the remit of the code and the scope for discretion and the apportionment of costs.
However, on 25 August 2009, the Government issued a new statement announcing that the following should be included in the measures to be considered against repeat infringers:
- the Secretary of State should be given the power to direct Ofcom to introduce the technical measures if he considers them to be necessary to ensure faster implementation of these measures and greater flexibility;
- the suspension of accounts of serious infringers should be added to the list of potential technical measures; and
- some costs, such as operating costs of sending notifications, should be split equally between ISPs and right holders.
The Government claims that this represents a development in its thinking, rather than a change of position. The Internet Services Providers Association (ISPA) has expressed its concerns at the lack of consultation in relation to the amendments. In particular, ISPA considered that involving the Secretary of State in the technical measures would politicise the process and also expressed its concern that the suspension of accounts was a disproportionate response. To some extent this last view is supported by the European Parliament’s proposed amendment to the EU Telecoms Reform Package which would only allow courts the power to restrict the right to receive and send information without interference. If this amendment were adopted, there would be a potential conflict between some of the UK measures now under consideration and EU law. A group of large ISPs and consumer rights advocates has written an open letter criticising the latest proposals on a variety of human rights grounds.
The Government consultation closed on 29 September 2009.