UK: Government Changes Tack On P2P Consultation - Lord Mandelson Takes It Personally

Last Updated: 26 August 2009
Article by Chris Watson and Scott Fairbairn

The Department of Business Innovation and Skills (BIS) has just released a Government statement changing the content of its consultation on proposed legislation to address illicit Peer-to Peer (P2P) file-sharing. Originally the Government's latest consultation consultation promoted Ofcom as the most appropriate body to decide on whether Internet Service Providers (ISPs) should be required to take 'technical measures', such as blocking sites and filtering content, against their own customers. 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 these measures, and that 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.

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Keeping Control

One of the biggest changes to the consultation to address P2P file-sharing set out in the Government's latest statement is that ultimate responsibility for deciding whether to implement technical measures (which now may include suspension of a user's account) will rest with the Secretary of State not Ofcom. In deciding whether or not to implement technical measures the Secretary of State will take advice from Ofcom but will not be bound by its conclusions. The Secretary of State (currently Lord Mandelson) will be able to take 'wider' issues into account to decide if he believes technical measures are necessary. By changing the proposals relating to technical measures half way through the consultation period the Government seems to be trying to regain control of this issue. The new proposals gives the Secretary of State the flexibility to be able to push this forward as he sees fit. This mechanism could allow important legal and procedural constraints to be over-ridden, at least in the short term, if not indeed permanently; this is concerning.

The press release sets out a new two-step process:

Step 1 - Ofcom to develop a code and investigate 'the mechanics of introducing technical measures', i.e. what is technically possible and what would be effective. The new release says Ofcom will 'consult on their conclusions' . Lobbyists, such as rights holders, ISPs and consumer groups may see this as two new opportunities to shape how P2P file-sharing is dealt with in the UK - first to 'assist' Ofcom in its preparatory work and then again when Ofcom consults on its conclusions.

Step 2 - The Secretary of State will take into account Ofcom's findings and then will decide what he wants to do. Decisions on technical measures will be implemented via secondary legislation. Critics may 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.

Cutting users off?

The Government statement also now includes 'suspension of accounts' as a new "technical" measure. Its states its reasoning for this change as follows: 'Since the issue of the consultation, some stakeholders have argued strongly that none of those technical measures is powerful enough to have a significant deterrent effect on infringing behaviour'. The press release does not give details of exactly what such a 'suspension' would entail, but the Government seems to be putting the remedy of cutting off users back on the table half-way through the consultation period, before all the responses are in. Any measures to cut off internet users will attract headlines and raise concerns that innocent people may be cut off. Furthermore consumers will object if the onus is on them to appeal, a reversal of the fundamental principle of 'innocent until proven guilty' and of the burden of proof.

Similar proposals in France to cut-off Internet users and to impose sanctions without recourse to a Court of law were deemed to be unconstitutional and infringements of inalienable human rights. Meanwhile similar thorny issues are set to be debated in Europe as the European Council and European Parliament are due to discuss how to resolve the stand-off over an amendment made to the proposed Telecoms Package and approved by the European Parliament stating that a user's Internet access may not be restricted without a prior ruling by judicial authorities. BIS seems to be aware of the issues, and has sought to soften their new proposals with a reference to the rights of innocent consumers: "It would be important to ensure as far as possible that innocent people who may be affected by such technical measures would retain access to the Internet services they need, including online public services". It remains to be seen what 'as far as possible' means in practice; consumer groups may argue emergency and similar safety of life services should always be available.

Paying the Price

In its June consultation the Government presented the view that "As a general principle we believe 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". However the Government now seems minded to require ISPs to bear the majority of the costs although they receive no apparent benefit.

'We are minded to allocate costs so that essentially individual parties will have to bear the costs they incur as a result of these obligations apart from the operating costs of sending notifications, which will be split 50:50 between ISPs and rights holders.'

As the obligations being consulted upon are incumbent on ISPs, this is likely to mean that if the proposals are accepted, in practice ISPs will bear the majority of the costs save for a contribution by rights holders towards the costs of the obligation to notify alleged infringers.

Pushing for Progress

The Government's latest proposals seem to reflect a desire to have in place as soon as possible an effective deterrent solution to prevent P2P file-sharing. However there is a long way to go in determining the practicality and effectiveness of technical measures, the legality of interrupting users' internet connections without recourse to a court of law, and of course, who should in all fairness bear the financial burden.

Internet Service Providers

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 25/08/2009.

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