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February 04, 2013 | Peter Bradwell

Even more delays to the Digital Economy Act

The Digital Economy Act's Sharing of Costs Order has been withdrawn - another procedural complication that will delay implementation even further.

Maybe it is cursed. Maybe it is simply the subject of an incredible series of unfortunate events. Or, maybe the Digital Economy Act is burdened with the legacy of a botched Parliamentary process that has resulted in its implementation being a long, drawn out and complex mess.

We have been informed that the Sharing of Costs Order - a Statutory Instrument made to fill in the detail of powers created by the Digital Economy Act - has been withdrawn. The result is another delay to implementation of the Act. How much of a delay is not clear.

The Cost Order was laid before Parliament towards the end of last year. It has been withdrawn because of concerns from the Treasury about whether the Costs Order complies with their Managing Public Money guidelines (which you can download and read for your self, if you really want to).

Ofcom are spending hefty amounts of public money, which ultimately would be paid back by copyright owners participating in the scheme. The Government maintains the issue now is technical compliance with the guidelines. The exact reasons are not clear. But the fact that Ofcom are stumping up many millions of pounds with apparently no clear commitment from copyright owners about who will pay it back and when could be part of the problem.

The Government had hoped to see letters being sent out by mid 2014. With work still to be done on setting up the appeals body, in addition to clearing the Costs Order and Initial Obligations Code with the EU, it seems very unlikely they will hit that target. We are approaching the third anniversary of the Act’s royal assent and its almost certain that the 2014 deadline for implementation won’t be met.

As we suggested the Culture, Media and Sport Committee on January 22nd, the ongoing mess is in large part down to a botched Parliamentary debate. The previous Government's failure to take enough time to consider the details of the Bill, and its implementation through statutory instrument, or to consider the technical and legal issues - from sharing of costs to the threat to publicly available wifi - in sufficient detail has unsurprisingly led to the mess being cleared up after the passing of the Act through the drafting of the Initial Obligations Code and Sharing of Costs Order. (See our written submission to the CMS Committee here).

Together with other organisations we wrote to the deputy Prime Minister to ask for the impact assessment of the Digital Economy Act 2010 to be re-done in light of recent Ofcom research into online copyright infringement.

Before DCMS and Ofcom and the Treasury spend even more money on implementing this ill thought through law, the Government should take a step back and consider whether the Act is workable and effective. The fact that some of the copyright owners seem to baulk at paying for the Act, would indicate that even they don’t believe the three strikes system will result in a 70 percent reduction in online copyright infringement, as projected by the impact assessment.

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January 30, 2013 | Ruth Coustick-Deal

The Coalition's New Year’s resolution list

They are a bit late sending them through, but luckily the Government have passed us their new year’s resolution list to look over.

They are a bit late sending them through, but luckily the Government have passed us their new year’s resolution list to look over, and we thoroughly approve:

1.     Put the Snoopers Charter in the bin. Then do a fundamental review of surveillance law in the digital age.

2.     Proper reform of illiberal speech laws such as "section 127(A)"

3.     Personal information policies, such as the EU Data Protection Regulation, that give people more rights and control over their data.

4.     Protections to make sure pupil, patient and other personal data is never sold by us to private companies.

5.     No mandating "default on" ISP filtering

6.     Inclusive, evidence based copyright policy-making that promotes creators' rights, freedom of expression and privacy

7.     Repeal of the Digital Economy Act

8.     Implementation of reforms to copyright that permit useful activities like format shifting and parody 

9.     The publishing of core reference data - such as postcodes, detailed maps and information from companies house - as open data

10.   We will stop demanding internet companies police the Internet

11.   Increased transparency around injunctions that lead to the blocking of content online

Well, actually that's not their real list. We wrote it. But wouldn't it be lovely if it was true?

Let's hope our ambitious wishlist becomes fact in 2013.

We will be campaigning on these eleven issues and more. If you want to help put make these an achievements list, please join ORG or get involved with our work.


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January 24, 2013 | Ruth Coustick-Deal

What is the Government's online child protection policy?

Is the Daily Mail in charge of child protection policy making?

 I would prefer to be writing an article with a headline that doesn't have a question mark at the end. But the Government seems to determined to confuse and frustrate those wishing to understand their position on parental controls and Internet filtering. 

 A month ago we had a clear idea - a response from government that said no to default on filtering
Now it seems there is a very real danger that the Government will abandon this reasonable policy (which is barely a month old) and look at default on censorship. Ed Vaizey MP yesterday gave a speech suggesting that 'Protection will automatically be on if parents don't make choices'. He promised a white paper later in the year that could be the vehicle for this policy. 

A little background. In December the Department for Education published its response to the consultation about online parental controls. In it they set out a pretty reasonable position, broadly supporting the idea that parents are best placed to make decisions about the protections necessary in their household, and should be supported in doing so.

We were quite pleased that the Government had seemingly listened to the views of the consultation respondents, looked at the available evidence and come to a decent policy position. They would not be mandating 'on by default' Internet filtering.

Only a few days later the Prime Minister soured the mood in an article for the Daily Mail, suggesting that in fact the Government would pursue a much stricter line. It was lightning quick policy scrambling. Whilst he didn't explicitly mention default on filtering, he did say two things that set alarm bells ringing. As we pointed out at the time:

1. A complex technical solution. He laid out some quite detailed specifications defining how filtering tools should work - with some confusion about what will be on or off by default. 
2. He appointed Claire Perry MP to lead the implementation of these policies. This is like putting Julian Assange in charge of implementing extradition policy. She has led the campaign for default-on filters, and with the Daily Mail have a sort of neo Mary Whitehouse campaign under way. Putting her in charge gives a strong suggestion that someone in Government wants to do more than help parents make choices about online safety and want to start taking those decisions for them.

Ed Vaizey's speech goes further in explicitly saying that if parents dont make a choice filters will be on, and suggesting that these ideas will be laid put in a White Paper. Internet filters block too much - health sites, shops, personal blogs, political sites, restaurants and bars, community forums. They do not simply catch pornography but involve businesses making subjective decisions about what is appropriate for young people of all ages, including things like 'esoteric behaviour'.

The filters take decisions about what is right for a family or household out of parents' hands. In mandating default on ISP filters, the Government would be helping create an infrastructure of censorship that would be ripe for abuse and prone to mistakes. And such filters do nothing to help with some of the serious issues related to 'sexting' that were researched by Professor Andy Phippen in his work for NSPCC.

The Government was on the right track. They had listened to the evidence and looked like they would help parents make their own decisions about managing their children's safety online. It should not change direction because the Daily Mail, whose hypocrisy in the search for sales and clicks is obvious, felt they had more mileage in it. 

We shall be seeking clarification as soon as possible.

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January 02, 2013 | Peter Bradwell

Online gift shop blocked by mobile networks

[Update 10th January 2013] The blocks on the website has now been removed. Whilst this is good news, we hope it won't take a blog from Open Rights Group to resolve all cases of over-blocking.] 

This morning we had another report of an incorrect block on mobile networks, via our website This time the website is The site offers personalised, engraved gifts. It does not seem to contain any 'adult' material. 

This is an online shop - meaning the block was affecting their ability to sell their products. The block was spotted and reported to Virgin Mobile in early December. The problem has not yet been fixed. So the block was in effect over Christmas, and will have affected the site's ability to reach their market in one of the more important retail periods of the year. 

We have so far confirmed the site is blocked on Virgin Mobile and Orange. We also checked on O2's handy URL checker, and the site is classified as 'tobacco' (although the site is not blocked on O2's default blocking service.) 

One of the categories of products sold by the site is "smoking accessories" - meaning engraved lighters, cigar cutters and so on.  So it seems likely that the filtering systems that Virgin and Orange use picked up on those words and concluded the site is unsuitable for under 18s. 

The report of the block was submitted to us by the owner of the website David Thompson this morning. When we followed this up, Mr Thompson told us that he had tried to report the mistake to Virgin (as a Virgin customer) in early December but had no success yet sorting out the problem. 

The initial response from the advisor at Virgin seems to echo what we found last year for our mobile Internet censorship report (see the appendix in our our report.)

Initially they suggested they could remove the block from Mr Thompson's phone. This of course would do nothing to help everyone else access his site. And the advisor did not know how to get the site removed from the blocking system. They recommended Mr. Thompson get in touch with He did so on 10th December last year and is still awaiting a reply. 

Mr Thompson discovered the block when he got a new phone last year. Had he not done so he may not have ever challenged the mistake. Also, it is not easy to establish if a business is blocked on other networks. And what if website owners are just curious as to whether mobile filtering systems have decided they are worth blocking? Why is there no way, aside from O2's URL checker, for people to check this more easily? 

This story highlights some of the key issues with default network filtering. For example, the systems tend to block too much. Those who run sites will not necessarily be aware that they are blocked. And it can be hard to correct mistakes and get sites removed from filters when they shouldn't be there. 

We have contacted Virgin and Orange about the block, and their process for dealing with reports of mistakes, and will update you with news when we hear it. 

Default filters and government policy

We had thought we were making progress with policy makers on the problems with default on filtering - the Department for Education published a welcome response to their consultation that stated they would look to support parents in making their own decision about what is appropriate for their families. However, only a few days later the Prime Minister confused matters with his article in the Daily Mail. Our previous blog post on this has more detail. In short, it is not clear exactly what the Government's position is. 

Along with Index on Censorship, Big Brother Watch, Coadec and Taxpayers Alliance we have asked for a briefing on exactly what the policy now is. We will keep you posted. 

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December 21, 2012 | Peter Bradwell

More freedoms to use copyrighted works: it's not the end of the world

Yesterday the Government announced its plans to implement the recommendations of the Hargreaves Review - namely, how it will put in place various exceptions to copyright that permit more uses of copyrighted work. Here is the detail (pdf).

These were reforms recommended in the report by Professor Hargreaves in May 2011. (See our write up from the time in Comment is Free). After that, the Government announced its intention to implement his proposals and ran a three month consultation on the plans. You can read our response to the consultation here, and a full list of responses is available at the IPO website. 

Following these two consultations, the government have refined how the ideas will be put into practice. The result is a pretty reasonable set of proposals that will permit all sorts of uses of works that currently sit on the wrong side of the law.

There has been some of the usual alarmist bluster in response already - for example, ITN have suggested the proposals will 'irrevocably dismantle the UK’s intellectual property framework'. 

In reality, it will do no such thing. These are some pretty modest proposals in truth. Some of them will simply bring us line with what plenty of other countries already permit. Some simply help the law match public expectations and existing practices. The IPO seem to have done a good job of listening to some of the concerns about the scope of the exceptions and have narrowed some of them accordingly.

We think that the proposals will help encourage greater use of copyrighted work, encouraging people to be creative, and to engage with the cultural works around them. This won't, we don't think, come at the economic expense of the creators of the original work.

Here are some initial notes on some of the proposed exceptions. 

Private copying

Here are the proposals:

"People will be permitted to copy content they have bought onto any medium or device that they own, strictly for their own personal use (such as transferring their music collection from CD to iPod). This will not allow sharing copies with others but it will allow consumers to copy material to and from private online cloud storage."

'Value added' cloud services will still require licenses, and the copying can only be for private and personal use (meaning it doesn't allow sharing between friends or family, and there is a very cautious approach to access to copies that do not have TPM that needs more explanation.

People will be able to request copies that allow them to take advantage of the exception where TPM (Technical Prevention Measures) prevent them doing so. The Government says that they do not want "this provision to undermine the reasonable application of TPM by rights holders, particularly in new business models".

This leaves some services in a bit of a grey area. For example, when 'buying' a film or tv show over on Blinkbox (as I have done to watch 'Veep'), a a purchase actually means access to a stream. This is permanent access - one presumes so long as Blinkbox exists. If I have 'bought' the Veep series, could I write to the Secretary of State to ask for a copy for personal back up purposes? It could be that the exception leads to services such as Blinkbox modifying their terminology, from 'buy' to something like "long term rental" or something similar.

There will also be no 'iTax' - meaning there will be no levy involved that would see costs added to blank media or cloud services to offset any harms caused by private copying. The reason is that the narrowness of the provision means there will be minimal or no impact on the revenues of rights holders. 


We called in our responses to the consultations for a new exception to permit parody, and set up the site to support that. We are delighted to see the government's intention to "allow limited copying on a fair dealing basis for parody, caricature and pastiche.' They confirm that "existing protection for moral rights, including the right to object to derogatory treatment, will be maintained."

This will be a fair dealing exception. This basically means the legal test, as stated in the Government's response, is "whether a fair minded and honest person would have dealt with the copyright work in the manner in which the defendant did, for the relevant purpose". One aspect of this is the 'degree to which a use competes with exploitation of the copyright of the copyright work…If a use…acts as a substitute for it, and thus affects its value, then it is less likely to be fair".

One interesting side effect of this is that it should incentivise licensing. This is because the availability of a license to use the work will be a factor in whether use of the work without a license for parody is 'fair' under the fair dealing proposals. So this should not undermine existing licensing arrangements, for example. It makes it harder, though, to refuse to license because you simply don't like the intended use.

There are also proposals for lots of other exceptions too - for quotation to enable academic reports, tweets and blogs can reference copyright works (with acknowledgement); to enable non-commercial researchers to use computers to read and analyse data; and to facilitate wider educational use of copyright works (so that teachers, for example, can use material on white boards).

It's a detailed set of plans. I'd recommend taking some time out of your christmas holiday to read it in full.

The proposed reforms, implemented carefully, shouldn't result in a weakening of creators' positions or their levels of remuneration. But they will encourage more socially and economically useful activity. And the Government will review the effects of the plans after they have been implemented, taking into account developments such as the planned copyright licensing hub.

So this is not the end of the world for creative industries. In fact, it should be good news, reflecting public expectations and facilitating greater engagement with copyright works. These look, to us, like some pretty common sense reforms for the digital age.

The Government aims to introduce these "through the smallest possible number of Statutory Instruments" and hope to have them in place by October 2013.


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December 21, 2012 | Peter Bradwell

Court of Appeal allows Golden Eye appeal

This morning the Court of Appeal handed down their judgment in the appeal by the firm Golden Eye. The Court allowed the appeal. We have made a pdf of the judgment available, and an online copy is available at the Bailii website. 

Golden Eye were challenging the High Court's refusal to grant them a "Norwich Pharmacal Order" that would require Telefonica UK to hand over personal details relating to about 6,000 IP addresses.

Open Rights Group intervened in the case on behalf of the Internet users potentially affected by the Order. We were able to do so because of the extraordinary generosity of the supporters who donated to our appeal. 

Here is more information on the original hearing, from Consumer Focus (who intervened at that stage). And here is more background on Open Rights Group's intervention in the Golden Eye appeal.

We are of course disappointed with the decision, and we're sorry to those who donated and thus enabled us to make this intervention that we can't bring you better news. We are extremely grateful for your help.

We will be studying the judgment carefully and then we'll consider properly the implications before deciding how to proceed. 

We are concerned that such a decision effectively means that someone who themselves has no interest in a claim can acquire personal details to obtain large sums of money. In this case Golden Eye are not a firm of solicitors, and thus are not regulated in the same way solicitors are.

However, despite the judgment this was an extremely important intervention. We are pleased that we have made sure the issues raised by applications such as this were closely examined by the Court.

These requests potentially involve large amounts of personal information. Without our intervention, and the excellent work of Consumer Focus earlier in the case, the application would have been something of a formality.

The companies who hold the information, such as Telefonica UK in this case, usually do not contest these applications. That means it is left to us to defend the interests of their users in court. In future it will be much harder for people to run the sort of 'speculative invoicing' campaigns we have seen in the past. That's down to the interventions made in this case.

This is the first of what we hope will be a number of legal interventions, through which we hope to promote the rights of Internet users in the courts. That's why we're so delighted to have achieved our fundraising targets and can recruit a legal officer to manage our legal work.

A big thank you once again to all those who helped us intervene in the case with such generous donations. 

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December 20, 2012 | Peter Bradwell

Confusion over parental Internet controls

Will filters be default on, off or something else?

Five days ago, the Department for Education announced a very reasonable approach to child protection online. Their plan was to make sure parents are supported in making easier, more informed decisions about how to keep their children safe online.

This was based on a consultation that focused on evidence, engagement with stakeholders and soliciting to the views of parents and industry.

But today the Prime Minister is singing a different tune. His article in the Daily Mail today suggests he is taking a more restrictive line, and that he wants to see 'default on' filtering. This has created a lot of confusion, seemingly just to satisfy the Daily Mail's editorial whims. Are they really to be the drivers of Internet policy?

So, what is actually happening? Is this a 5 day policy about-turn?

The Prime Minister is to some extent just describing the approach already set out but in more aggressive terms. However, there are a couple of things to get concerned about:

1. The complexity of the system he seems to be advocating. The Prime Minister has laid out some quite detailed specifications defining how filtering tools should work - with some confusion about what will be on or off by default. 

2. Claire Perry MP has been appointed to lead the implementation of these policies. She has led the campaign for default-on filters. This suggests Government want to do more than help parents make choices about online safety, and want to start taking those decisions for them.

The issue here is whether the Government mandates a specific technology and specific options for consumers, especially where those are on by default.

The available evidence (for example, the EU Kids Online project), does not support moves to implement a default 'on' Internet filters, and suggests that technical measures such as filtering are not effective as a means to prevent children's exposure to risk online. Filters can also give parents a false sense of security and often, through error, overreach or abuse, lead to the blocking of legal and legitimate content.

There are plenty of filtering tools available. According to Ofcom, 46% of parents use them and only a small percentage of those that do not say this is down to lack of awareness or technical skills. The majority of people do not support default on filtering. (See our fact sheet on parental Internet controls.)  

Parents should instead be supported, to help them make easier decisions about what is right for their families. We hoped that the Department's initial response on Friday showed the Government understood this.

The Department for Education arrived at a very reasonable and welcome position:

"...the offer to parents should be reformulated in a way that ensures that children can be given the levels of protection their parents think is appropriate for them, reduces the risk of uninterested parents avoiding online safety issues, and does not impose a solution on adult users or non-parents."

Today's announcement leaves everyone confused - parents, ISPs, the public and probably the Departments who thought they were in charge of policy making.

There are legal and practical reasons why government policy goes through public consultation, and why responses are outlined through official channels. If the government has something specific in mind, then then the place for an announcement is not a newspaper opinion piece. The 3,600 people who responded to the consultation, and received a response from the DfE with a clear reaction, haven't been told of any further shifts.

An article in the Daily Mail simply doesn't mean anything official. We're all left guessing what's going on.

We will be asking for clarification on what is actually happening as soon as possible.

Here is our fact sheet on online parental controls.
Here is our submission to the consultation on parental controls. 

Mobile filtering, and demonstrating the problem with default filters

A leader in the Sunday Times (note: subscription required) wondered aloud why the Government had shunned a 'neat' solution to online pornography. They argued that the evidence of risks associated with mobile use demonstrated the need for default filtering of the internet:

"A report from Professor Andy Phippen of Plymouth University, published last week, showed that 40% of children under 12 have seen pornographic images online. As an article in News Review today explains, this hugely colours their attitudes towards sex — and not in a good way. Many girls are being pressurised into underage sex by boys who have themselves been extensively exposed to gross sexual images."

First, there is no such statistic in the NSPCC report. The report found that for year 6 pupils there "is little evidence in our groups to suggest that these children were exposed to sexualised content, or asked to self generate." The report does cover some very important issues with the sharing of sexual material amongst young people, often related to self-generated images.

It's worth actually reading the report, which is preferable to just repeating something you were told about it.

Second, the article fails to note there is already default Internet blocking on mobile networks.

This is a mistake repeated by the Daily Mail. They say:

"concerns remain about how the Government plans to address children accessing porn via their own smartphones"

These articles help to demonstrate two things.

First, the limitations of default internet blocking. (On a related note, see our recent post on mobile networks' blocking of a church's website and our report, published in May this year jointly with LSE Media Policy Project, on how mobile internet filtering gets it wrong). 

Second, the campaign for 'default on' filtering is based more on assumptions than the evidence of the problem, the tools available and what they can do.

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December 19, 2012 | Ruth Coustick-Deal

ORG Law Fund reaches its goal!

Open Rights Group has raised enough new funds to allow us to recruit a part-time Legal Officer.

I am delighted to tell you that, thanks to your generosity we have now raised enough to be able to fund Open Rights Group’s first Legal Officer.

Thank you very much to all of you who supported our ORG Law Fund, by joining, sharing the campaign on Facebook or Twitter, passing  our videos round on YouTube, telling your friends about our work and signing them up. It is wonderful to see so much support and enthusiasm for ORG.

When we launched the campaign on 2 November 2012 we said that we wanted to reach 150 supporters, the minimum needed to have enough funds to pay for a part-time legal officer:  we now have enough to finance this position.

If you would still like to support our Law fund, please do. If we reach 300 new supporters  we will be able to fund the new position on a full time basis and give ORG an even greater capacity for legal work.  It’s a great time to join ORG as we look back on a year of successes  - defeating ACTA, stopping default censorship and preventing the draft Communications Data Bill becoming law. I encourage you to join and enable us to have more victories as we take on this new project in the coming year.

What will the new position do?

  • Expand and organise our legal panel scheme where individuals can request pro-bono legal advice on digital rights issues

  • Prepare friend of the court briefings to explain the civil liberties consequences of web blocking injunctions

  • Provide technical advice to the courts where proposals would be unworkable or have unforeseen circumstances

  • Draft amendments to delete or replace misused powers, such as Section 127 A, which was used to prosecute Paul Chambers in the Twitter joke trial

  • Challenge Government decisions in judicial reviews

  • This new capacity will enable us to build on the amicus curiae (friend of the court) briefing on the Digital Economy Act juridical review where we explained the impact on privacy

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