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Tuesday, 30 August 2011

Shock as leaked document reveals government requested Ofcom make Digital Economy Act appeals harder

Reasons for further delays to the Initial Obligations Code (IOC) - legislation which details exactly how the online copyright clamp-down under the Digital Economy Act will operate - were revealed in a document leaked online nearly a month ago, but very few seem to have noticed the leak (and I've been busy with a new arrival)!

I previously reported that further delays could be expected to the UK's 3-strikes anti-filesharing laws when I noticed only one of two remaining pieces of legislation arrived at the EC this month.

Leaked documents; or rather, sections redacted in previously-released official documents; now reveal at least one reason for further delays to the IOC is because the Government made a direct request to Ofcom that it should make it harder for people accused of copyright infringement to appeal the accusation.

The request comes under the guise of reducing costs of the scheme; however costs should not be of concern to government as the entire cost of running the measures are due to be met by copyright owners and, to a much lesser extent, by ISPs.

The request to narrow the grounds for appeal comes on top of the announcement at the start of this month that those wishing to appeal will have to pay an appeals fee before an appeal can be heard, renewing concerns from consumer groups that those on a low income will be denied access to justice.

No more public consultations, chilling effects on open public WiFi

In a further blow to public confidence in the Digital Economy Act, sources indicate the changes will be made without further public consultation, and rushed to Brussels by the end of September.

Public consultation is now essential, due to the importance of ensuring the appeals process remains fair, robust and lawful under relevant sections of the Digital Economy Act.

The appeals process is critical to an individual's right to due process under law, because accusations of copyright infringement will be made solely on evidence gathered by groups working directly for copyright owners.  The appeals process is the first time those accused of copyright infringement have a chance to examine the evidence against them and have their side heard by an independent body.

Consultation is also overdue because of changes I'm told are in the latest update of the IOC to protect those who offer open internet access in light of a lobbying campaign by schools, colleges and libraries.

I'm hopeful that all bodies who offer open internet access will be protected after comments made by Justice Kenneth Parker [paragraphs 235-240] concerning potentially "chilling effects" on free an open public WiFi during a judicial review of the Act.

Section 13(6)(b) of the Digital Economy Act means those who do not take "reasonable steps to prevent other persons infringing copyright" (i.e. closing-down all open WiFi) will not be able to appeal any accusations of copyright infringement made made against them.  This for me is one of the most contentious areas of the Act, as it - despite protestations from government - effectively introduces vicarious liability of the ISP subscriber for activity occurring on their internet connection; even if they had no knowledge.

Leaks and redaction of recommendations

A tipster reported Twitter account @ThemisProject to this blog, whose tweet dated 3rd August provides a link to what appears to be an unredacted copy of the Ofcom report.  Authenticity of the leaked report cannot be verified at this stage, but the content appears genuine as it closely matches what other previously-reliable sources have told me.

I recently had a Freedom of Information request for an unredacted copy of this document refused.  It's not clear at this stage whether the document published on Twitter entered the public domain via a leak or a flawed redaction technique.

Sources indicate that the IOC is being redrafted in line with the recommendations in this report.

Comparing the official (redacted) document to the leak reveals The Government has asked Ofcom to remove a catch-all in the appeals process which allowed appeals to be made on "any other reasonable ground."  

This catch-all was previously thought necessary, as the list of grounds for appeal was "non-exhaustive" and may need updating as technology evolves.  Justice for internet subscribers is now dependent on Ofcom coming back with an exhaustive list of appeal grounds in the redrafted IOC; and, keeping this list up-to-date as technology evolves (and, presumably, updating the legislation in Parliament and notifying each update to the EC).

Ruling-out a public consultation makes it more likely that grounds will be overlooked.

It's worth stressing again that the government appears to have asked for this change; this approach is not the approach first recommended by Ofcom.

Also revealed in the redacted sections is that a scheme to help improve the accuracy of infringement accusations by requiring ISPs sign-up to a Quality Assurance process to ensure accuracy of IP address matching will not be mandatory.  Note also the equivalent Quality Assurance process copyright holders are required to sign up to is centred around self certification, with no obvious checks and balances.  It's hard to see how voluntary/self-certification processes will do anything to improve the accuracy of accusations of copyright infringement.

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