Following the release of the Digital Britain final report and a consultation on the implementation of new legislation aimed at tackling p2p file sharing in June, the Government has now announced its intention to toughen the list of sanctions that might be imposed on file sharers, to include the temporary suspension of internet connections. The Government has also stated its intention to ensure that such sanctions can be put in place faster than previously planned, if they are deemed necessary.
The Government announced in June 2009 its plans to introduce new legislation which will see Ofcom impose two obligations on ISPs – to send notifications to allegedly infringing subscribers, and to keep records of such notifications and make them available to copyright owners on receipt of a court order. At the same time it issued a consultation on the details of the legislation, which is still open. We detailed the consultation in our newsflash of 22 June 2009. Midway through the consultation the Government has issued a statement outlining several changes in its thinking – mostly in favour of taking more stringent and swifter action against file sharers. The changes are summarised below.
- Secretary of State to have power to introduce technical measures, not Ofcom
The second stage of the proposed legislation, which would have empowered Ofcom to require ISPs to impose technical sanctions on subscribers such as bandwidth capping, originally appeared a long way off – it was not envisaged that it would be implemented until at least two years after the first part of the legislation comes into force. The Government now deems this an "unacceptable amount of time". To make it possible to introduce measures more quickly (should they be needed), it proposes to empower the Secretary of State to direct Ofcom to introduce the measures, rather than leave the decision to Ofcom. The Secretary of State could also direct Ofcom to begin preparatory work on the mechanics of introducing technical measures, which would make it swifter to implement them if it is decided they are needed.
- Removal of trigger mechanism for technical measures – now in the hands of the Secretary of State
Technical measures were to be delayed until such time as Ofcom could evaluate the effectiveness of the notification stage, and would only be reduced if such notifications failed to reduce illegal file sharing by 70%. The Government now proposes to drop the precisely defined "trigger" mechanism and instead give the Secretary of State discretion to introduce measures based on "robust and transparent evidence of the general direction and pace of change".
- List of possible sanctions will now include a last resort of account suspension
The list of possible technical measures – which included bandwidth capping, content filtering and protocol blocking – originally left out one key and controversial sanction: suspension. This will now be included in the list, meaning that it will be possible for Ofcom to require ISPs to cut off repeat offenders, at least temporarily. The Government does describe this as a last resort – noting that cutting off a connection would affect not just the file sharer, but everyone else in the same household. It is, nevertheless, a highly contentious proposal, and will no doubt provoke strong reactions from ISPs and internet users, some of which consider internet access to be a basic human right.
- Costs allocation to be specified up front
There is to be a code – agreed by the industry and Ofcom – to regulate the notification regime, and the allocation of costs between the various players for the regime was to be agreed as part of the code. The Government now considers that debate on costs will delay the agreement of the code, and proposes instead to allocate costs such that each party bears its own, apart from the operating costs of sending notifications, which will be split 50:50 between ISPs and rights holders.
In light of these quite significant changes, the period for responding to the original consultation, and the latest statement, has been extended until 29 September 2009. The full statement can be found here: http://www.berr.gov.uk/files/file52658.pdf.