The Department of Business Innovation and Skills (BIS)
has released a government statement drastically changing the
content of its current consultation on proposed legislation to
address illicit Peer-to Peer (P2P) file-sharing, writes Scott
Fairbairn, associate in the Telecoms team at CMS Cameron McKenna
(pictured).
The statement explains that the government now wants the
secretary of state (currently Lord Mandelson) to have sole
responsibility for deciding whether or not to require ISPs to take
technical measures against customers identified as file-sharing. It
says these measures should now also include suspension of an
internet user's account.
The statement also sets out the government's controversial view
on how the costs of these proposals should be apportioned between
rights holders and ISPs.
It is unusual for the government to change its mind on important
issues mid-way through a consultation. Having spent so much time
consulting on the issue in 2008 and in the run-up to the Digital
Britain report, such a last minute U-turn was unexpected.
The government now proposes the secretary of state, Lord
Mandelson, rather than Ofcom, will decide whether ISPs should
implement technical measures (such as blocking, slowing or
disconnecting users' internet access). While Ofcom will consult on
the technical and practical consequences of such measures, the
secretary of state will not be bound to follow Ofcom's advice. This
move is designed to give the secretary of state flexibility to do
as he pleases, but the worry is that this mechanism could allow
important legal and procedural constraints to be over-ridden.
Controversially, the government is considering suspending
people's accounts without recourse to a court of law, which raises
legal issues. This will cause concern that innocent people may be
cut off. Consumers will object if the onus is on them to appeal, as
this is a reversal of the fundamental principle of innocent until
proven guilty, and a reversal of the burden of proof. This is
especially relevant as file-sharers can mask their identity and
hi-jack other people's internet connections. Similar proposals put
forward by president Sarkozy in France were recently deemed to be
unconstitutional and it remains to be seen whether such plans could
be legally enforced in the UK.
The government's new plans also propose that the secretary of
state will decide on whether to implement these measures without
having to ask Parliament to approve his decision. Many will argue
that the mode and manner of the implementation of technical
measures has human rights impacts and is sufficiently important
that it should be ratified directly by Parliament in primary
legislation.
The government has also rewritten its views on how costs should
be apportioned when it comes to dealing with suspected
file-sharers. In its June consultation the government supported the
principle that "the cost should be borne by the party that will
benefit, though there may be circumstances where it is appropriate
to diverge from that". While the measures are designed to benefit
rights holders, the government now seems minded to require ISPs to
bear the majority of the costs, although they receive no apparent
benefit. Unless the government can be convinced otherwise, ISPs
will have to pass the costs on to consumers. The revised
consultation is open until September 29th.