Ofcom rattling ahead with Digital Economy Act letters regime

ORG and consumer groups were back in the Ofcom offices on the South Bank this lunchtime to talk about the initial obligations code. The process is rattling ahead, with a deadline imposed by the legislation of having the whole thing in place within X months. As this includes three months during which the EU must be able to check that the draft code is compatible with European legislation, Ofcom is left with an impossibly tight deadline. The result is that these initial discussion meetings are being arranged with barely a few days notice and very little possibility to prepare.

The atmosphere was nevertheless friendly and we agreed on certain issues. There are, however, four points we are particularly worried about.

1. It is unclear what will happen to providers of open WiFi
There are a number of long established grassroutes open WiFi networks in the country, as well as individuals who feel they should be able to share their connections. Many councils such as Camden or Shoreditch (Hoxton Square WiFi) in London provide open WiFi. They deliberately leave their network open because they want to share their internet access with other people (who may not be able to afford it). ORG strongly believes that everyone should be allowed to do that.

The appeals process is allowed to accept an appeal if a customer has taken ‘reasonable steps’ to stop third parties from infringing. Apparently, what those reasonable steps are might well be left up to the appeals process to establish. It’s unclear what ‘reasonable steps’ might be if you wish to run an open WiFi network, which is still completely legal. And preventing people from sharing wifi seems totally disproportionate. Meanwhile, the letters are going to have to advise customers what they might do – and what the consequences might be.

2. Will ISPs and help services be ready to deal with the process?
The contents of the letter will be very important. If format, length and tone are not appropriate, there is a fair chance that people misunderstand the information or don’t take it seriously. Yet rights holders and ISPs are inclined to view the process as informative rather than quasi legal, with genuine consequences such as court action if people fail to take note of them. We also think that it is easy to underestimate the sheer number of copyright infringement reports (CIRs) and subsequent notification letters, and the reactions they will bring; and the need for help and information as a result.

3. The letter must clearly set out the right to appeal and how the subscriber can get independent advice
It is not enough to simply say that you have the right to appeal. A lot of citizens will not notice a simple sentence setting this out, let alone understanding what it means, especially as it means appealing against an allegation. The letter might go straight to the bin, and the need to appeal be ignored. Therefore, a section in the the letter must clearly set out the process for the subscriber, that they can and should appeal if innocent, and how and where the can get independent advice. Furthermore, this advice needs to come from a body different from the appeals body. This can be a citizens advice bureau in the first instance, but then probably needs to be an independent service like Consumer Direct in order to cope with the volume of queries.

4. If technical measure are different to the notification process, the number of alleged infringements needs to be cleared
Ofcom say that technical measures are not part of this consultation. They are not able to answer the question of what will happen to the lists of copyright infringement allegations at the end of the notification stage. The list of alleged copyright infringements may be kept and used in a future technical measures stage. If the threshold was, say, 50 infringements and you accumulated 35 during the notification stage, you would get disconnected after another 15. This is clearly unacceptable: it would be a retrospective application of the law. A simple solution would be if BIS (or whichever department is in charge in a new government) stated that the evidence collected in the notification period would not apply to the technical measure period.

ORG will be liaising with groups such as Consumer Focus and Which? and present Ofcom with a list of principles for the whole process next week.