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August 24, 2012 | Peter Bradwell

Privacy advocates write to Interception of Communications Commissioner

There appear to be mistakes in the report from the Interception of Communications Commissioner that lead him to underestimate how often communications data is mistakenly shared. We've written to the Commissioner to ask why.

Today ORG, Liberty, Privacy International, Big Brother Watch and Professor Ross Anderson of University of Cambridge will write to the Interception of Communications Commissioner to ask about apparent mistakes in his 2011 report into how effective the RIPA oversight regime is.

In his report the Commissioner tries to calculate the 'error percentage' in RIPA requests. Which is basically a way of trying to say how often mistakes are made by those with powers to request data under RIPA. The consequence of these sort of mistakes is information potentially being disclosed when it should not.

The figure has been used by the Home Office to demonstrate how few errors there are and how well RIPA works to guard against unauthorised use - for example the 2010 figure (which was 0.3%) is cited in their Privacy Impact Assessment for the Snooper's Charter (or to give it its official name the draft Communications Data Bill). In his 2011 report, the Commissioner states that the figure is 0.18%. 

However, we're pretty sure this is incorrect. The figure seems to have been worked out by dividing the number of errors he has discovered or had reported to him by the total number of RIPA requests. But the IoCC and his team don't look at every single request. They take a sample. And the sample size is not published.

As we say in our letter, that means the reported error figure of 0.18% is effectively useless. Assuming we're correct, it only identifies the error percentage rate for the total number of RIPA requests if the Commissioner is confident that there are zero further errors in the uninspected requests.

We have already asked for more information about this. The IoCC said they could not publish it. Further, the Prime Minister's Office have acknowledged they hold the relevant information but consider it exempt from the FOI Act for national security reasons, and are considering the public interest in disclosure.

A clear picture of the error percentage is important to help us judge whether the powers to collect and access communications data are working. At the moment, this problem is getting in the way of a proper consideration of the draft Communications Data Bill - which is proposing to extend the current oversight regime to a much broader set of data.

So it needs clearing up. You can read the full letter below.

Friday 24th August 

Dear Sir Paul,

We are writing to you about the number of errors you discovered through your team's inspections, and to express concerns about the conclusions you draw regarding the overall ‘error percentage’ in RIPA requests for communications data.

We welcome the increased breadth of information disclosed in your 2011 Annual Report. Transparency is an important part of any effective scrutiny regime, and at no time is this function more vital than when safeguarding against the unlawful access of private communications data.

Of the 494,078 requests for communications data in the reporting year 2011-2012, you state that “895 communications data errors were reported to my office by public authorities”. Later in the document, you disclose that 99 of those errors were identified by your own inspectors, and not reported by public authorities. Thus, 11% of all errors identified within the Report were only uncovered following your inspections, which examined a random sample of those 494,078 requests. This figure demonstrates the importance of independent scrutiny, and we laud your transparency in permitting its disclosure within the report.

We note, however, that you do not detail the size of the sample inspected, making further accurate independent analysis of this aspect of your report impossible. Based upon those 895 identified errors, you declare that the “overall error percentage rate” is 0.18%; a conclusion we assume to have been reached by the following calculation:

(895/494078) x 100 = 0.18%

Your inspectors have not examined each of the 494,078 requests but, rather, a subset of that total. Thus, with respect, your ‘error percentage rate’ cannot be correct: the calculation assumes that within the uninspected remainder there are no further errors.

A more accurate (although still imperfect) calculation would establish the “error percentage rate” of the random sample, and apply that percentage to the total number of requests. If we assume, for example, that 10,000 requests were scrutinised by your team, the 99 errors identified would equate to an “overall error percentage rate” five times greater than your conclusion within the report:

(99/10000) x 100 = 0.99%

On this assumption, there remain a further 4784 undiscovered errors within the pool of 494,078 requests.

A clear picture of the error percentage is critical for determining the necessity and proportionality of powers used to collect and access communications data. It facilitates a proper understanding of the likely 'collateral intrusion', and helps us to understand the likely frequency of false positives. 

We are concerned that a lack of clarity, or imprecision, in the analysis of error rates under the current RIPA regime may be inhibiting proper scrutiny of the draft Communications Data Bill. For example, the overall error percentage rate from 2010 (0.3%) is cited on page 11 of the Home Office's Privacy Impact Assessment for the draft Bill as evidence of how robust the current oversight regime is. As we explain above, we are unable to accept the accuracy of this figure.

Accordingly, we appeal to you to clarify how your calculations are made and what advice on statistics you have had, and to disclose the number of requests your team inspected.

Yours sincerely,

Professor Ross Anderson FRS FREng, University of Cambridge
Gus Hosein, Executive Director, Privacy International
Jim Killock, Executive Director, Open Rights Group
Nick Pickles, Director, Big Brother Watch
Rachel Robinson, Policy Officer, Liberty

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August 07, 2012 | Peter Bradwell

Initial Obligations Code needs rewriting. Again.

ORG has written to the Minister Ed Vaizey MP explaining why we believe the Initial Obligations Code still isn't good enough.

Last week, the Minister for Culture, Communications and Creative Industries Ed Vaizey MP wrote to ORG, explaining how he understood the position of libraries and universities under the revised 'Initial Obligations Code'. (The Initial Obligations Code is the instrument that sets out in detail how the Digital Economy Act will work).

We replied today, asking for approval of the Code to be withheld and that DCMS instruct Ofcom to rewrite the Code once more. (The Code requires the approval of the Secretary of State Jeremy Hunt MP).

You may remember that in our submission to Ofcom's consultation, we asked them to have another go at writing the Code. That is because we think it still leaves cafes, hotels, libraries and other providers of wifi to the public with no clarity as to whether they will be considered 'subscribers' and be the subject of Copyright Infringement Reports. Despite the increasing importance of a widely available 'infrastructure' of publicly available wifi internet access, the Code does nothing to address the position of those providing that access. 

This is what we explained to the Minister in our reply today. We also set out how important wifi access has become to Internet users in the UK, and that it would be damaging for the Government to be taking steps that disincentivise the provision of wifi. 

You can read our letter below. The Minister's letter to us is available here (pdf). 


7th August 2012


Dear Mr Vaizey,

Thank you for your letter of 2nd August regarding the revised Initial Obligations Code, which included an explanation of your understanding of the position in which libraries and universities now find themselves under the Code.

We certainly recognise and welcome the work that Ofcom have put into the revised Code. However, we believe it still does not provide the requisite level of certainty for wifi providers, from libraries through to cafes and hotels, as to whether they will be considered 'subscribers' and as a result be the subject of CIRs. As a result the Code will likely act as a disincentive to the provision of public wifi and undermine a key plank of the UK's Internet infrastructure.

Given the likely low levels of infringement on such networks, this is a significant cost for little gain in terms of a reduction in levels of copyright infringement. We suggest that approval for the current Code is withheld pending a further revision that explicitly addresses the position of these wifi providers. In this letter we focus on this issue, suggest how this might be achieved, and explain why we think it is important to do so.

DCMS and Ofcom say that it is 'likely' that public intermediaries will be classified as non-qualifying ISPs rather than subscribers. We are far from certain this will be the case. Unfortunately, the appeals body does not have the power to issue such binding guidance.

We contrast this to the stance that Ofcom have taken with large wifi providers, who are explicitly excluded from the scope of the Code because “inclusion is likely to lead to them incurring substantial costs to achieve a minimal reduction in overall levels of online copyright infringements.” We note no such analysis been undertaken for other providers.

If the current explanation is a recognition that libraries and other wifi providers are in a problematic position then there is little reason to avoid properly clarifying the issue with certainty now.

This should be possible. Ofcom have claimed that they are prevented from exempting libraries and other wifi providers because this was not the intention of the government when the Act was passed. We do not agree that the will of the past government continues to have this effect.

It is within Ofcom's powers to deal with the central issue: ensuring that wifi providers, including for example libraries, cafes and hotels, will not be considered subscribers that can be subject to CIRs under the Code. Ofcom can create a class of entities which cannot be the subject of a CIR under section 124(A) of the Digital Economy Act. We suggest that they do so through a further revised Code. Failing this, DCMS should provide Ofcom with an instruction to this effect.

We consider this to be such a vital issue because public wifi availability has grown in significance for Internet users in the UK.

As we detailed in our submission to the consultation on the revised Code (which we have attached to this letter), Ofcom's own research demonstrates the importance of broadly available wifi infrastructure. The most recent Ofcom market report suggests that 81% of smartphone data traffic was carried over wifi in January 2012. Similarly, the Oxford Internet Institute's Internet Survey 2011 defines the 'next generation' Internet user as being 'someone who accesses the Internet from multiple locations and devices.' Many providers of wifi have repeatedly asked for clarity and suggested that without it they may withdraw wifi provision. The Act and Code effectively kills off open wifi and places disincentives to the continued proliferation of wifi spots in the UK.

Given how easily this could be resolved, we see no reason to avoid taking definitive action on this problem now. We suggest that approval is withheld for this version of the Code, and that Ofcom produce a further revised Code that properly addresses the substantive issues identified by so many over the past two years.

Yours sincerely, 

Jim Killock
Executive Director

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August 06, 2012 | Peter Bradwell

Consulympics: opportunities to have your say on tech policies

There are loads of opportunities to have your say on technology policies over the next few weeks.

You may have noticed that there is currently an international sporting event going on in London. You probably have noticed. Olympic fever has monopolised most people's attention, hearts and their minds. And of course the title of this blog post is a slightly clumsy and obvious attempt to make various technology policies seem like they are as viscerally entertaining as beach volleyball, artistic gymnastics or the heptathlon. Which they probably aren't. To most people anyway.

But there are lots of really important consultations going on at the moment which will go some way to determining all sorts of policies, from the way public bodies anonymise data, through the government's position on 'parental controls' and internet filtering, to new powers for surveillance. There are at least six consultations, to be precise. It would be a shame if they crept under the radar.

As always, your voice can make a real difference. If you feel like these will affect you, that you are particularly interested in the issue, or have useful evidence, we'd strongly urge you to submit something. 

Here is a general overview of the consultations, with some relevant reading and links to the relevant documents - we'll post more on each of these closer to their deadlines. Here's what's happening, in order of the deadline for submissions (nearest first). So if you're bored of the Olympics, need a break from all the sport, or were never interested in the first place - these should keep you busy. 

1. Consultation on a draft anonymisation code of practice

2. Communications Data Bill Joint Committee consultation

3. Parental Internet controls consultation

4. 'Midata' consultation

  • Deadline: September 10th
  • What is it? MIDATA is an initiative that 'seeks to give people access to their personal data in an electronic re-usable format' - in other words, an effort by government to get businesses releasing more data to consumers about their use of that service. "The consultation seeks views and opinions on a proposal to create an order making power, which if utilised, would compel suppliers of services and goods to provide to their customers, upon request, historic transaction and consumption data in an open standard machine readable format."
  • Additional note: "We are also running a series of Open Forums over the consultation period at the BIS building, 1 Victoria Street, SW1H 0ET. The dates are as follows: Thursday 9th August, 3-5pm; Thursday 16th August, 3.30-5.30pm; Thursday 23rd August, 3-5pm. Please for more information."
  • Useful reading:

5. Digital Economy Act Sharing of Costs Order consultation

  • Deadline: September 18th
  • What is it? Ofcom "are consulting on the implementation of an order to be made by the Secretary of State - The Online Infringement of Copyright (Initial Obligations) (Sharing of Costs) Order (the "Costs Order"). This Costs Order will require Ofcom to set fees payable by Copyright Owners to ISPs and to Ofcom if they intend to take advantage of a notification scheme in relation to online infringements of their copyright." Issues include £20 appeals fee. 
  • Useful reading:

6. European Commission 'net neutrality' consultation


Update, 22nd August 2012:

7. European Commission 'notice and takedown' consultation

  • Deadline: 5th September
  • What is it? Essentially trying to establish the issues with how processes for taking down material from the Internet should work. It's called 'A clean and open Internet: Public consultation on procedures for notifying and acting on illegal content hosted by online intermediaries', and the objectives to contribute to developing legal certainty, trust and therefore growth in (cross-border) online services, thus enhancing the functioning of the Digital Single Market; to contribute to combating illegality on the internet; and to ensure the transparency, effectiveness, proportionality and fundamental rights compliance of notice-and-action procedures.
  • Useful reading:


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August 01, 2012 | Peter Bradwell

Creators and mergers in the music business

There are some big changes afoot in the music industry at the moment. Universal Music Group are trying to buy the recorded music part of EMI for $1.9 billion (see this and this for some coverage).

Opinions have been varied and robust (see the American Assn. of Independent Music statement, for example). The UK Government yesterday expressed a sort-of opinion on the matter, with Secretary of State Jeremy Hunt saying: "As far as the specific deal is concerned, that is a matter for the competition authorities and is being looked at in Europe". Critics have said that it could concentrate power in the music industry, shrinking opportunities for access to the market. According to the Wall Street Journal, Martin Mills, chief executive of independent music group Beggars Group, said the deal 'would give Universal an unfair advantage in signing artists and gaining access to distribution, retail and media'. 

We've been monitoring this because we're interested in how the new landscape could or should affect musicians and their relationship with the big players in the business. Whatever the outcome of the attempt by Universal Music Group to buy EMI, it seems important that regulators consider the likely impacts on citizens not just in their role as consumers, but also as creators and performers both now and in the future. Digital technology brings opportunities to all of us to participate in culture and in markets. Allowing the incumbent businesses simply to divide up the market between them in a new way doesn't seem like a great stimulation to innovation.

So we've noted with interest the Featured Artists Coalition suggestion that artists involved should be given the chance to buy back their rights from record labels on fair terms. Those artists would then be free to re-enter the market in new ways and with business models far better adapted to the digital world. FAC say:

"This is an historic opportunity to create a more sustainable music industry – a future music industry more meaningfully described as a collection of individual artist businesses rather than specific sectors like records, publishing and live."

Here's their open letter to the Financial Times from 19th July in full:

"Sir, The views of Patrick Zelnik (“A Universal EMI merger could rescue the music business”, Comment, July 17) were as welcome as they were needed. His analysis was incisive, but his solution stopped one step short of perfect.

Divestments in the wake of mergers should first offer copyrights, at market rates, to the artists who created them. To sell them to other corporations, whether large or small, is just a perpetuation of an old business model, which has seen the recorded music business halve in value over 10 years. During that time, the technological revolution has displaced the old music business players. We do not need to repeat the mistakes of the past.

It would be good to have music business people rather than financiers owning and running music companies again. It would be even better to have artists owning their work and entering into partner relationships with service-providing major and independent record companies with all the finance and expertise an artist needs to develop their own business.

Top management at Universal has already concurred with this view. The concept of “turning the taps on” so that music catalogues are much more readily available to users, and copyright ownership is not an impediment to new services, would help build the artist-centric new music business that will benefit creators, investors and consumers.

Ed O’Brien, Radiohead
Nick Mason, Pink Floyd
Sandie Shaw

The Featured Artists’ Coalition"

It seems like this proposed acquisition gives regulators a unique opportunity to think in these terms - about the position of the creator in digital markets - as they consider ways to protect against over-concentration in music markets. ORG supports this suggestion from FAC, and urges regulators in the UK, Europe, and elsewhere, as a matter of principle to put artists and citizens at the centre of their response. 

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July 27, 2012 | Peter Bradwell

Calls for Ofcom to try again with the Digital Economy Act 'Code'

Yesterday was deadline day for Ofcom's consultation on the revised 'Initial Obligations Code' - the instrument that sets out how the Digital Economy Act will work in practice. This is the second iteration of the Code, following an initial consultation back in 2010.

We have put up our submission in our reports section. Thank you if you responded to our call earlier in the week to respond or to submit your story to us.

Since the previous consultation, Ofcom and DCMS have had two years to fix the problems. So it's frustrating that such important problems remain.

In our submission, we note in particular that Ofcom and the government have failed to address to issue of wifi providers, leaving providers of wifi access from cafes, hotels and bars through to libraries and universities with no clarity about their liability. Despite the increasing importance of a widely available 'infrastructure' of publicly available internet access, the Code does nothing to address the position of those providing that access.

We're not a lone voice. Consumer Focus call in their submission for the Secretary of State to withhold approval of the Code in its current form 'because it does not provide legal certainty on reasonable steps or for WiFi providers, business and public bodies which provide internet access to consumers'.

Mike O’Connor, Chief Executive of Consumer Focus said "Ofcom’s draft code does not provide clarity to WiFi providers, businesses or public bodies over who is responsible for copyright infringement carried out through a shared connection. We are concerned that libraries and universities could find themselves incurring significant costs which may result in them deciding to limit internet access. Hotels, pubs and cafes also face legal uncertainty. There is no evidence that significant levels of infringement occur on WiFi networks or the networks of libraries, which provide access to the web for those on low incomes and the 20 per cent of households without internet connection" and that they are "calling on Ofcom produce a revised Code which will respect legitimate consumer rights and help businesses and public bodies to continue to provide internet access to consumers".

Libraries, universities and other research institutions recently called for Ofcom to address the position of wifi providers, arguing that as it stands, the Digital Economy Act risks 'forcing public libraries, schools, colleges and universities to limit access to the internet.' 

We'll post more submissions to the Code as we see them.

We'll also be writing to the Minister Ed Vaizey echoing the calls for him to ensure a definitive solution to the remaining concerns with the Code, and asking him not to approve the Code in its current form.



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July 24, 2012 | Peter Bradwell

Tell Ofcom to fix the threat to wifi

Ofcom are running a consultation on a new version of the 'Initial Obligations Code'. That sounds as boring as it is important. It basically sets out how the Digital Economy Act will work in practice. 

ORG and many others have repeatedly told Ofcom and the Government that the Digital Economy Act could stifle Wifi provision and see individuals targeted unfairly. It is the Code which should sort that out. But the revised Code, two years in the making, has not addressed some of the key issues. 

Ofcom and the Government have refused to create an exception for wifi providers. As a result, we think the Code leaves businesses and public bodies that provide wifi facing allegations of copyright infringement and the costs of dealing with the powers of the Act. Libraries, other educational bodies and hospitality businesses have said they may restrict or withdraw wifi provision if this does not change. 

This is our chance to say why this is a bad idea. 

There are two things you can do. 

  1. Please consider responding to the consultation yourself, especially if you are a wifi provider or regularly use wifi in public and are worried about how this will affect you. You have until this Thursday (26th July). You can respond to the consultation using the form on Ofcom's website. Or there are more details on how to respond at the bottom of this email. 
  2. Tell us if you are a wifi provider, and think you might receive allegations of copyright infringement as a result. You can use our form to let us know, and we'll pass this on to Ofcom as part of our submission.    

What is happening?

Ofcom have published their revised 'Initial Obligations Code'. This sets out who is subject to the provisions of the Digital Economy Act, and who is not. It says, for example, whether those that provide access to wifi in public places, like cafes, will have to deal with allegations of copyright infringement.

Wifi providers still don't know whether they will be held liable for the behaviour of those using their wifi. The revised Code does not address their situation directly, leaving them unclear as to whether they will be considered 'subscribers' (and therefore subject to allegations of copyright infringement) or not. The only way they can avoid this is by negotiating with their ISPs, convincing them they are wifi providers. It is complicated and time-consuming, and it is not even certain that this will see them avoid the powers of the Act.

This is despite repeated warnings from libraries, campaigners and MPs about the precarious position wifi providers are being placed in. If you run a business that provides open Wifi or access to customers - for example, a cafe, bar, or hotel - then this Code affects you. Wifi is an increasingly important part of the UK's internet infrastructure. The Government should not be putting that at risk so cheaply. 

We think Ofcom should create a carve out for public bodies and businesses that provide Wifi to their customers, to ensure that WiFi provision is still as widely available as possible.

Ofcom's site has the new Code and consultation document. Saskia Walzel from Consumer Focus has written more about the detail of the proposals for ORGZine

What can I do?

Two things. First, if you are a wifi provider, or regularly use the Wifi available in the places mentioned above, and feel the Code does not do enough to protect wifi provision, then please let Ofcom know.  This is a real opportunity to tell the Government that the Digital Economy Act still poses a serious risk to the provision of Wifi in the UK. If you think you will be affected, respond to the consultation. The deadline is 26th July. Ofcom have given you a few ways to respond. Here's what they say:

  1. "Online: The quickest and simplest way is to complete our online consultation response form. This is ideal for people who have specific brief points to make and/or do not need to attach large documents to their response.
  2. By email: For larger consultation responses - particularly those with supporting charts, tables or other data - please email attaching your response in Microsoft Word format, together with a consultation coversheet.
  3. By post: Alternatively, you can write to Ofcom. Please address your response to Justin Le Patourel, Head of Online Copyright, Floor 2, Internet Policy Team, Ofcom, Riverside House, 2A Southwark Bridge Road, London SE1 9HA. Please enclose a consultation coversheet with your response."

Second, we'd like to use your stories to help us explain to Ofcom the issues with the Code. There's two things we'd like to know:

  1. Tell us if you provide wifi to the public, and are worried that you might incorrect receive allegations of copyright infringement. Give us details if possible about the kind of wifi you provide. 
  2. 2. People will be given 20 days to appeal allegations of infringement. If you think this will not be long enough, let us know and tell us why. 

You can use our form to tell us. Please submit your story before the end of this Wednesday (25th July). 

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July 18, 2012 | Jim Killock

Snooper's Charter: a Bill without a proposal

Yesterday’s hearings on the proposed Communications Data Bill provided for some hilarity, as Professor Glees laid into the “civil liberties lobby” and made quite outrageous claims for the need for increased surveillance to reduce criminality.

He made a very weak case. Which seems comforting: but Professor Glees is not the government, nor Charles Farr.

The signs are that the Home Office is gearing up to bolster their arguments, starting with calls to gather evidence for the “business case” for new data gathering, mentioned by the police in their evidence session.

While constructing the business case after you propose legislation ought to worry the committee, for us, the lack of detail surrounding the proposals is highly worrying. Julian Huppert today said that he was declined access to draft orders, which would contain more information. Big Brother Watch were declined information about the costs and analysis breakdowns, which we have also requested.

How is committee meant to scrutinize a proposal that has not been properly published?

The committee’s debate has been encouraging. We have managed to advance the idea of notification of people after they have been investigated; the need for independent supervision has also been properly discussed. Most commentators have assumed that the scheme will aim at creating data mining capabilities.

The questions over capability, data mining and the consequences of collection are harder to articulate. We reminded the Committee about China hacking Google via police back doors; and Vodaphone Greece being hacked via law enforcement back doors by an unknown government.

Data, once created, poses a risk. It is interesting to criminal gangs and foreign governments, as well as law enforcement. Law enforcement is not entitled to put the whole population at risk because of its own needs, especially when these can be met in other ways.

Hopefully the risks will be discussed in more detail in the technical sessions, now planned for 4 September.

However, all of us worried by this Bill do need to know more about what this supposed reduction of data really is about. Is it law enforcement having investigatory problems, and lacking expertis in finding the relevant data? Is it that some companies have good data minimization policies? We need to know, in order to help the Committee understand the real options available.


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July 13, 2012 | Peter Bradwell

Lords Committee knocks Digital Economy Act Costs Order

Digital Economy Act time. Remember that?! We spent yesterday morning at Ofcom, who kindly offered us and a couple of other organisations the chance to ask questions about their revised Initial Obligations Code. It was a useful exercise. It's clear that they have done plenty of work on the code since the previous draft in 2010. It seems to us like there's plenty still to look at - for example there's still plenty of uncertainty around the liabilities to be faced by WiFi providers, in our opinion. They're running a consultation which closes on 26th July. We'll write up and publish our response soon, and we will also be asking you to respond, especially if you are a wifi provider such as a cafe, hotel or library and are concerned about how the Code may affect you.

Shortly after yesterday's meeting, the Secondary Legislation Scrutiny Committee published its report on the Draft Online Infringement (Initial Obligations) (Sharing Of Costs) Order 2012. They conclude that "The House may wish to press the Minister in debate for greater reassurance about whether this scheme will function effectively; and we draw the Order to the attention of the House on the grounds that it may imperfectly achieve its policy objective."

They criticise the £20 appeals fee, the confusion around the position of wifi providers such as libraries, and the laying of the order whilst a consultation was ongoing. The Committee ends by questioning whether the objective of reducing copyright infringement by 75% is achievable.

(The Committee scrutinises secondary legislation and makes recommendations to the House on its findings. The Sharing of Costs Order 2012  requires 'Ofcom to set fees payable by Copyright Owners to ISPs and to Ofcom if they intend to take advantage of a notification scheme in relation to online infringements of their copyright.')

If you are following the Digital Economy Act, it really is worth reading the full report. Some of the more choice comments:

  • "We…note that DCMS offer no robust definition of what they interpret as "vexatious" or "frivolous" appeals" 
  • "we note that paragraph 10.4 of the EM says first that under the Initial Obligations Code libraries offering public access networks will not be considered to be ISPs but in the following sentence the EM says that they can claim that they are ISPs. We find this confusing; and we remain unclear whether or not such institutions will be charged the £20 appeal fee." (The EM referred to is the Explanatory Memorandum.) 
  • "DCMS should have given the House a much clearer explanation of how this Order fits into the wider policy context."
  • "We were also concerned about the unusual situation where DCMS have laid before Parliament an Order that is the subject of an ongoing consultation. DCMS assured us that the consultation relates only to the implementation of the Order and not to the instrument itself. However, if DCMS is not yet clear about how the scheme will be implemented, it raises questions about how can they set the level of an appeal fee that satisfies the terms of the Treasury Rules for full cost recovery"
  • "the Committee does not have sufficient information to judge whether £20 is the appropriate amount given that significant parts of the structure of the scheme and the appeal mechanism are still undecided."
  • "This Order makes a division of costs based on a large number of currently unknown factors, and those who are required to operate it have made it clear that their cooperation is entirely dependent on financial considerations. This raises questions about whether DCMS's policy objective of reducing online infringement of copyright by 75% is achievable."

Now, this may all sound extremely niche and complicated. And it kind of is. But its also really important. The IOC and the Costs Order are supposed to clarify key substantive issues in the Digital Economy Act. It is telling that 2 years after it passed, some of these are still a cause for concern - including, as the Committee points out, why a £20 appeals fee was decided to be most effective and reasonable option. There are some lessons here - if you rush an Act, based on an inadequate analysis of objectives and how to achieve them, without sufficient scrutiny, then you'll probably have to spend quite a lot of time afterwards trying to clear up the mess.

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