The British regulator, Ofcom, could be asked to order broadband providers to block websites, protocols and ports, as well as throttle users. It is part of a plan to make Ofcom oversee anti-filesharing measures, under the Brown government's Digital Britain proposals, released today. But will they go against EU law?
The British government's Digital Britain proposals released this afternoon, set out a plan for broadband providers to be asked to block Internet users using 'technical measures, if anti-filesharing warnings do not prove effective. The regulator, Ofcom, is to be given a "duty' to take steps aimed at reducing copyright infringement." The first steps will be make broadband providers
send warnings to users whose account 'appears to have been used to infringe copyright" and to make them reveal personal data of users who are alleged by rights-holders to have repeatedly infringed. If the alleged infringements do not decrease by 70 per cent, then Ofcom will be required to tell the providers to block protocols, websites and ports, or to throttle file-sharers.
The report takes a draconian view of file-sharing. It claims that : "it is undisputed fact is that a significant proportion of
consumers are choosing to access digital content unlawfully, principally via nlawful peer-to-peer file sharing."
and that " The Government considers online piracy to be a serious ffence. Unlawful downloading or uploading, whether via peer-to-peer sites or ther means, is effectively a civil form of theft"
The report fails to take account of the mere conduit status of Internet providers, which is enshrined in EU law, and implemented in UK law. It also fails to recognise the requirement that governments must not ask Internet providers to monitor.
However, it does appear to support certain amendments in the EU Telecoms Package, which I have consistently argued are a work-around both of these legal provisions - namely Recital 39 and Article 33.3 of the Universal Services and Users Rights directive, which ask national regulators to promote cooperation between rights-holders and ISPs.
Digital Britain proposes a 'rights authority' whose role appears to be to draft the code that Ofcom will apply. It the industries cannot do it themselves, the government will step in and legislate.
So the rights authority is not a Hadopi - there isn't any intermediating public body. Ofcom would appear to have the role of overseeing the working of the code, but does not have a responsibility to check allegations or to forward them. There is no provision for this, which arguably makes it worse than the French model.
And it suggests very clearly that the measures are intended to support new models of preferential content deals between content providers and ISPs. (p111, Point 28 - see below)
In another part of the Digital Britain report, the government proposes to look into criminal sanctions for copyright infringement. And it proposes to tax us at the rate of 50p per line per month, to support the broadband infrastructure upgrade - what in my opinion, appears to be state aid for BT and Virgin Media.
Page 111, point 28 of the Digital Britain report:
...the Government will also provide for backstop powers for
Ofcom to place additional conditions on ISPs aimed at reducing or
preventing online copyright infringement by the application of various
technical measures. In order to provide greater certainty for the development
of commercial agreements, the Government proposes to specify in the
legislation what these further measures might be; namely: Blocking (Site, IP,
URL), Protocol blocking, Port blocking, Bandwidth capping (capping the speed
of a subscriber’s Internet connection and/or capping the volume of data trafficwhich a subscriber can access); Bandwidth shaping (limiting the speed of a
subscriber’s access to selected protocols/services and/or capping the volume of
data to selected protocols/services); Content identification and filtering– or a
combination of these measures.
The Digital Britain report is now available here . See pages 110-115.
There is also a further consultation on peer-to-peer filesharing by BERR - the BERR P2P consultation is also online.
Also worth noting is the revelation last week in a Financial Times article that BT already throttles file-sharing and video streaming down to 896 Kilobits per second, and that it wants to charge content providers such as the BBC. This also runs counter to EU law, as it stands, but explains the UK government's amendments to the Telecoms Package, and BT's lobbying silence on the matter.
This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2009)Ofcom to mandate Internet blocking , http://www.iptegrity.com 16 June 2009.