Legal Research

Press duped into believing govt u-turn on ?3 strikes? ?

By scott

A number of reports appeared last night ? such as this one (since update by the Guardian’s Charles Arthur) claiming that the UK government were back-tracking on the so called ‘three strikes rule’ to deal with persistent alleged illegal p2p filesharers. It came as the government published their response to a petition on the government’s e-petition site.

?We the undersigned petition the Prime Minister to abandon Lord Mandelson?s plans to ban individuals from the internet based on their use of ?peer to peer? file sharing.?

The government’s response describes the aims of the Digital Economy Bill, and the hope that warning letters will be enough to “secure our aim of a 70% reduction in illegal peer to peer file sharing. If that proves not to be the case, the Bill provides a reserve power obliging an ISP to apply ?technical measures? to a customer?s internet account to restrict or prevent illegal sharing. Technical measures might be a band width restriction, a daily downloading limit or, as a last resort, temporary account suspension. A proper independent appeal would be available against application of technical measures. More widely we also include a reserve power to amend the Copyright Design and Patent Act. This will allow us to tackle quickly any misuse of emerging technologies for copyright infringement and provide an element of future proofing.”

What got the media claiming the government had changed its tune came at the end of the response where it states:

“We will not terminate the accounts of infringers - it is very hard to see how this could be deemed proportionate except in the most extreme ? and therefore probably criminal ? cases.

We added account suspension to the list of possible technical measures which might be considered if our measures to tackle unlawful file-sharing through notifications and legal action are not as successful as we hope. This is but one of a number of possible options on which we would seek advice from Ofcom ? and others ? if we decided to consider a third obligation on technical measures. However what is clear is that we would need a rapid and robust route of appeal available to all consumers if we decided technical measures were needed.”

The problem with this is that nowhere in the bill does it actually say the government will terminate the accounts/cut off infringers, in the first place. The government and a media obsessed with talking about ‘3 strikes’ (which again, is not stated anywhere in the bill even though the government has indicated that something of the sort could operate ? although a strike could mean 50 or 100 or any other number of ‘alleged’ infringements). Even the relevant section heading in the bill is ‘Obligations to limit internet access’ . According to the Bill’s current text the technical measures employed :

(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

I agree with the Open Rights Group who say this ‘backtrack’ is a red herring.

?Temporary account suspensions? sound like the government would to suspend accounts for a few hours, or at most a day, to fit most people?s idea of ?temporary? and ?suspension?. We doubt ?suspensions? would be so brief. We can assume what the government means to you and me is ?disconnection?.

Indeed one of the problems with this bill is that it contains a worrying lack of actual detail that is being hived off into ‘Codes’ and Statutory Instruments. Parliament is being asked to sign off on a bill and trust the government to fill in the blanks later. Gordon Brown’s favourite Judge, Simon Cowell , along with the likes of Sir Terry Pratchett (disappointed in you Terry) who have written to the government urging them to stand firm and push this bill through would have been in a panic this am with some of the headlines but can rest assured that the government is still doing their industry’s bidding.

Full post as published by Information Overload on February 23, 2010 (boomark / email).