Is it the role of the telecoms regulator to assist with extra-judicial punishments on behalf of private companies?

The decision of the UK government's premium rate services referee to assist in the blocking of payment services on behalf of the IFPI raises serious questions as to the role of the telecommunications regulators in copyright enforcement. It also exposes actions by the British music industry to use payment services as a new - and possibly illegal - way to enforce copyright on the Internet.

The regulator is called PhonepayPlus (which sounds like a cheap calling service, but it actually is the regulator). Its role is to regulate premium rate services. These are the services which charge a high cost per minute and allow the provider to earn revenue. Premium rate services are frequently used for "adult" services and other scams and the it is reasonable to say that the regulator does have a tough job, and may be involved with the content.

In this instance, PhonepayPlus has said that it will work with the IFPI - the international recorded music industry's political lobbying body - and with the City of London police, to enforce copyright by asking premium rate providers to refuse services to sites on the sole basis of allegations made by IFPI.

But its press release and the information distributed to premium rate service providers, is on the one hand confusing and other, it is demonstrates a political bias which is unbecoming of a regulator.

In its own words, PhonepayPlus is helping IFPI to "proactively prevent online copyright infringement". The regulator says that it will be distributing information handed to it by the police, who have been given lists of allegedly infringing websites by IFPI. As such, that could arguably fit within the remit of a regulator - to merely inform and warn of a potential problem.

However, the press release says that PhonepayPlus will work with IFPI and the police to "ensure that illegal downloads ar not offered through premium rate services". This implies a stronger position. PhonepayPlus is saying that it will ensure that premium rate services are not used by websites accused by IFPI of copyright infringement.

The regulator is taking this action, even though, by its own admisssion, there is not yet any evidence that premium rate services are being used by any websites allegedly infringing copyright.

The press release exposes that Mastercard, Visa and PayPal are also working with the City of London police to "ensure their payment services are not used by websites whose operations are based on copyright infringement."

There are a number of aspects of this announcement which are concerning. The actions to be taken by Phonepay Plus will be based on Section 328 of the Proceeds of Crime Act. This assumes that that website owner has been found guilty of a criminal offence. However, copyright is complex. Not all copyright infringement is a criminal offence, and not all allegations of infringement will be found to be infringing. There are legal tests which need to be applied, and would usually be applied in a court hearing.

The allegations will be acted on following a judgement made by the investigating police officers. Surely, it is the role of the police to take such allegations to court, and to help the prosecution prepare its case? And not to take on the role of a judge and jury, and to mete out punishments directly.

This therefore looks like a case of the police - and public money - being recruited to pursue a private enforcement matter.

The recruitment of the national regulator pushes into a different league again. That turns a private enforcement process into 'national measures'.

Under European law - which Britain must implement - national measures to restrict websites and services must guarantee respect for due process under Article 6 of the European Convention on Human Rights. Taking a judgement of a police officer on the basis of music industry allegations does not - I would suggest - reflect due process for the website owner. This is Article 1.3a of the telecoms framework directive - see my extensive coverage of the Telecoms Package, for example, Telecoms Package: the verdict and my book The Copyright Enforcement Enigma: Internet Politics and the 'Telecoms Package' which discusses Article 1.3a in detail.

Moreover, the regulator is duty-bound under European law to retain political independence. Getting into bed with a lobbying organisation like the IFPI is a highly contentious political move. PhonepayPlus should treat it in the same was as a bushfire out of control, and stand well clear.

The correct attribution for this article is: Monica Horten (2011) The UK regulator, the police and the IFPI - is it out of line? http://www.iptegrity.com 4 November 2011.