ORG: Ofcom’s Digital Act Code Is Unlawful

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The Open Rights Group claims Ofcom’s draft code for the Digital Economy Act is unlawful, and calls for a new consultation on the code

The Open Rights Group has stepped up its opposition to the government’s Digital Economy Act, calling for Ofcom to totally scrap its draft code and start again from the beginning.

The first draft of Ofcom’s code of practice for tackling copyright infringement over the Internet was published in May, and includes a ‘three strikes’ rule, which could see persistent infringers being taken to court for illegal file-sharing.

Under the code, the IP address of anyone caught committing online copyright infringement three times will be added to a ‘blacklist’ held by their Internet service provider. Copyright holders, including music firms and film studios, will then be able to access the list and issue a court order to begin further legal action.

Code falls short

According to the Open Rights Group, however, Ofcom’s code omits vital requirements for outlining the standards of evidence. It also fails to set any proper thresholds for identifying serious infringers, for carrying out the appeals process or for the contents of letters sent to infringers. For these reasons, ORG claims, the code fails to comply with the Digital Economy Act.

“Ofcom’s proposal denies us the ability to check whether any of the evidence is trustworthy,” said Jim Killock, executive director of ORG, in a statement. “Instead, copyright holders and Internet Service Providers will just self-certify that everything’s OK. If they get it wrong, there’s no penalty.

“The Act requires the evidential standards to be defined – but Ofcom have passed the buck. How is anyone meant to trust this code if we can’t see how the evidence is gathered or checked?” he added. “Only this week, people have been apparently wrongly sent accusations of downloading tracks by the Ministry of Sound. We know things go wrong, and that’s why the Act requires the evidential standards to be set out.”

Mounting opposition

Opposition to the Digital Economy Act is gaining strength among rights activists and ISPs across Britain. Earlier this month, BT and TalkTalk launched a legal challenge against the law, which was rushed through parliament in the closing days of the previous government. The operators say the Act’s measures to curb online copyright infringement did not receive sufficient scrutiny when the bill was passing through Parliament, and are now calling for a judicial review by the High Court.

Meanwhile the Free Software Foundation has called on UK citizens to use the government’s newly created “Your Freedom” site to call for the repeal of the Act. The site was created by the coalition government as a forum for citizens to nominate laws and regulation which should be scrapped.

Pirate ISPs

Speaking to eWEEK Europe yesterday, British anti-copyright group, Pirate Party UK, predicted that Ofcom’s draconian file-sharing proposals would give rise to a new wave of “Pirate ISPs”. These would take advantage of a loophole in the proposed code – which exempts small ISPs with less than 400,000 users from the rules – in order to allow users to share files anonymously online.

“If this strange arbitrary limit does come into effect, we expect existing ISPs will react by splitting and regrouping to take advantage of the cost savings and customer benefits of being smaller,” explained party leader Andrew Robinson.

Nominating officer, John Barron, also suggested that the party might consider running its own VPN service, which UK citizens could use to protect their privacy, or a torrent tracker for legal torrents, as the Pirate Party in Canada does.

“If we did anything like that it would have to be thought through, so that we ensured what we did was legal in the UK, and that we were prepared to deal with anything arising under (for example) the Digital Economy Act or other UK law,” Barron told eWEEK Europe. “Ideas like this are certainly something we may consider doing in future, however.”

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