Fresh criticism of the Digital Economy Bill has been made with claims that ISPs ‘need strong protection from liability'.
Lilian Edwards, a member of the Advisory Council at the Open Rights Group, pointed out that as most press attention has focussed on the proposed disconnection plans, little has been covered about accusations and evidence or the rights and responsibilities of ISPs.
Edwards said that in the outline scheme, warnings are to be sent to subscribers solely on the say so of rightsholders and all they need to do, as presently laid out, is provide an IP address and time stamp of an alleged infringer to an ISP, and say that ‘it appears to [them that ] a subscriber .. has infringed the owner's copyright'.
Edwards said: “There is no requirement this belief be objectively reasonable. Nor is there any apparent sanction for malicious, or even simply careless or reckless allegations.
“Recent experience with the RIAA and BPI has shown that allegations made after IP address tracking at P2P sites often turn out to be wrong and that collecting IP addresses from P2P honeypots is a non-trivial exercise; so the issue of liability for erroneous accusations is an important one. Libel, malicious falsehood and data protection laws may offer remedies for the falsely accused; but there is no mention of such in the Bill itself (so far), nor of any reasonable duty of care. In other words, all the power is given to rightsholders, and none of the responsibility.”
Edwards also questioned what the laws were with regards to other people using a computer, should they ‘be routinely policed by the subscriber fearful of liability, their rooms and computers searched, guests interrogated about their laptops and smartphones?'
“What of the school or university or business which gives access to the internet to hundreds or thousands of people? These warnings will come to roost at their doors, or rather their IP addresses. Will we then see IBM, Oxford University and Standard Life (just say) subsequently banned from the Internet?” said Edwards.
“Is it really feasible to expect such organisations to stamp out downloading among all their employees or attendees (especially given most already do their best to try) or to spend the resources on internally trying to attribute the warnings to individual employees?”
Edwards also claimed that there is a problem raised with people who choose to leave their WiFi connection unsecured, as it could be seen ‘that leaving a network unsecured will count as allowing another person's infringement, and what we see is constructive prohibition of unsecured WiFi by the backdoor for consumers, corporations and the public sector.
Further criticism was made of the single appeal allowed against conviction, not to a full tribunal but merely to a ‘named person' who will be an arbiter of some type. Edwards claimed that there are no grounds named in the Bill for an appeal against an erroneous warning to be allowed, nor is it stated what disposal the person could make if an error was found to have been made.
Finally Edwards claimed that ISPs ‘hold an unfortunate piggy-in-the-middle position in all this, forced by the threat of a fine of up to £250,000 to co-operate with rightsholders, even though they gain nothing from the process but overheads and customer ill-will'.
Edwards said: “I have said elsewhere that I do not think it is just or sensible to enrol ISPs as ‘copyright cops', but if they are to be, they need strong protection from liability, ideally in the form of an indemnity from the rightsholders who actually plan to benefit from this whole stramash.
“ISPs face potential liability for sending out libellous allegations to subscribers, and again for disconnecting the wrong person on erroneous evidence, and in breach of contract, However currently all ISPs get by way of protection is the feather-light provision that an indemnity may – not must – be provided by the Code to be drafted.
“If I were an ISP, I'd be going out now to price a shedload of legal liability insurance J - or to check out moving offshore.”