The UK government has put an anti-filesharing law on its legislative programme commencing this autumn. The law is based on the Digital Britain report, which includes proposals to make the regulator, Ofcom, oversee protocol and website blocking. Will it contravene the Telecoms Package and how should it be seen in light of the French Conseil Constitutionel decision?

 

The  proposed law  will be called the Digital Economy bill. It will create changes in the regulatory framework for network providers, and Internet Service Providers. Of particular significance is the proposed change to Ofcom's mandate. Where Ofcom currently has a duty to protect citizens, based

on EU law, it will have new  a duty to reduce filesharing. This new duty will be made possible by the changes to  EU law in the Telecoms Package, and it is beginning to become clear exactly how the UK government has been laundering its anti-Internet policies through Brussels.

 

The proposals that have been published state they will create " a robust legal and regulatory framework to combat illegal file sharing and other forms of online copyright infringement".  Ofcom will be given a duty to ‘significantly reduce this practice'. The proposals include email warnings to be sent by ISPs and a requirement for ISPs to pass data on alleged serial infringers to the rights-holders in order that they may take court action.

 

The Digital Report is explicit that under the terms of its duty to reduce filesharing, Ofcom could be asked to implement technical measures to sanction users. These measures include protocol and website blocking and cutting off users - which is not clearly defined but there is certainly the technical capability using deep packet inspection to cut  users off mid-connection, or implement  a longer suspension. The latter would be implemented via the user's individual ‘policy' with their service provider.

 

Ofcom will also be given a new obligation to promote investment in infrastructure. This too comes directly from the EU Telecoms Package,  (Framework directive Article 8.5(d)). It is not clear what this means, except to protect the interests of the large network operators. There will be an important question as to who builds the infrastructure, because the network builder will control Britain's communications infrastructure for the foreseable future. BT and Virgin are obvious contenders as they already own the infrastructure. Will others, such as Sky, be asked to contribute?

 

I have previously written that I believe the Digital Britain proposals are intended to protect the commercial television industry, and I continue to believe that all the signs point to such a conclusion.

 The law is not yet drafted - that is the next stage. It is being proposed before the government consultation on peer-to-peer filesharing has even completed, which indicates a hurried move under industry pressure.

 Digital Britain is presented as ‘building a world class digital future' for Britain, and the prime minister has written that the Internet is equivalent to water in terms of its necessity for 21 century life. Yet the proposals in Digital Britain threaten the very heart of British democracy. It is a dangerous move to give any public body the power to block access to communications systems. This is effectively the power that Ofcom will be given.

 This  new power, positioned as a duty to protect some very specific private interests in the music and film industries,  conflicts with Ofcom's current obligation to protect the interests of citizens. This very  conflict  is the basis of the dispute with the EU Telecoms Package, currently going through the Brussels legislature. Amendments which support the UK government's position and which have been drafted by UK civil servants in Brussels, directly support what the government is proposing for Ofcom. It explains why the UK government is opposing Amendment 138 in the Telecoms Package. 

 

The UK proposals should be considered in the wider European context . The French Constitutional Council has recently determined that an administrative authority should not be given the powers to impose sanctions against Internet users, and that the key issue concerning whether or not a government may deprive users of Internet access is about freedom of expression.  The French were going to do it  physically, the British propose to do it using clandestine technology. Users should ask themselves what is the real difference? 

 

Read the proposal for the Digital  Economy Bill

 The Digital Britain report may be downloaded here.

Read the UK government consultation on p2p filesharing legislation This consultation is open until the 15 September 2009, so there is still opportunity for interested parties to submit their views. 

 

 Finally, there is something called the Champion and Task Force operated under the  unelected Minister, Lord Stephen Carter, which appears to be going to oversee Digital Britain. I have just discovered it and there is no information that says exactly what it is or who is on it.   It does seem to me that championing digital inclusion and giving the regulator and the network providers the power to selectively block access to the communications networks, are two contradictory policies.

This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2009)UK anti-filesharing law proposed for 2009/2010 , http://www.iptegrity.com 30 June  2009.