May 20, 2010 | Florian Leppla

Ofcom leaves people in the dark on future of Open WiFi and evidence used for technical measures

ORG together with Consumer Focus, Which? and the Communications Consumer Panel have drawn up a list of principles for the notification letter. We have attended a meeting at Ofcom this afternoon to discuss these principles.

It has become increasingly clear that Ofcom does not believe it is possible to deal with the issue of technical measures at this stage. They keep saying it is of no concern at the moment.

We believe it is. There is a question of natural justice. The problem is that we don't know if the evidence of the copyright infringement that is gathered during the notification stage can be used in the next stage, i.e. in the case technical measures are introduced.

This means people will not know the punishment that they may receive for alleged infringement, so cannot even be warned about them.  

People need to know now what government's intentions are. In the Lords debates the Labour minister Lord Young said that the evidence might be used in the second stage. So it's just not good enough if Ofcom to be left in a situation where nobody knows what's going to happen or what the consequences of allegations might mean. The Government has an opportunity to clarify the situation by stating that they abide by the principle of natural justice and will not use any evidence retrospectively.

Still no clarity on open WiFi networks
The other very worrying issue is that we still don't have an assurance that the process will not force the closure of open WiFi networks. Ofcom seem to acknowledge their public benefit and said that they have no intention of forcing people to secure their WiFi network or even to close it down.

However there is a strong incentive for ISPs to send letters that would imply that users must close their network. The way to avoid this is for Ofcom to explicitly state in the consultation that letters must inform people that they have the legal right to run an open and unsecured WiFi network.

On a more positive note Ofcom stated that the notification letter will contain all the information that was included in the CIR (the copyright infringement report sent from the rights holder to the ISP). So customers will be able to see what alleged evidence rights holders hold on them. It is unclear, however, if every CIR will trigger a notification.

Ofcom also agreed to our request that customers need to be given a clear route to independent advice from a reputable source. This needs to be set out in the notification letter.

Notify or not to notify
Another problem is the fear of the costs of the letters. Some people may have very good reasons for making sure they receive each and every copyright allegation as it is received. They may wish to follow these allegations up with the private detective businesses collecting the information and storing the reports made about them. After all, you have a legal right to access information stored about you. But at the meeting we felt there was not yet a proper recognition of these complexities, or desire to make people's rights fully enforceable.

We are now waiting for the publication of the consultation document which will probably happen at some point next week. Also we will soon publish our list of principles for the notifications.

This Act is a mess. Please email your MP and ask them to repeal clauses 11-18.