UK government plans to restrict the Internet have become clear. And how it is using the Telecoms Package to launder policy through Brussels. Without Amendment 138, the Telecoms Package would offer no obstacle to Internet filtering, blocking peer-to-peer file-sharing, or restrictions on any other web-based service or application.
The UK government's peer-to-peer consultation has slipped on a virtual banana skin and in the process let its Internet restrictions plans jump right out of the bag.
The consultation has printed a version of Amendment 138 in the EU Telecoms Package using a wording hitherto unknown: it includes the words ‘or for other legitimate reasons' which would give governments the get-out clause they need to apply 3-strikes andother sanctions to Internet users. This wording is not in the text that was adopted by the European Parliament on 6th May. Neither is it familiar to me, and I have seen several of the unofficial proposals for re-writes.
Amendment 138 says that the fundamental right to freedom of expression on the Internet may not be restricted without a prior judicial ruling. It seeks to stop anti-filesharing measures such as 3-strikes /graduated response, and arguably also prevents network filtering being used to block websites and user connections without a judicial ruling. But the changed wording in the Consultation on legislation to address illicit peer-to-peer filesharing, run by the Department for Business, Innovation and Skills, implies that the judicial ruling would not be needed provided the reason for imposing the measure was 'legitimate', and so it gives the UK government, and governments all around the EU, the go-ahead to implement the kind of measures to restrict the Internet that are foreseen in the Telecoms Package Universal Services and Users rights directive (Harbour report). .
The matter has been documented by the 1709 Copyright Blog ( which, incidentally, is written by lawyers). The 1709 Copyright Blog says that the consultation document could imply that the UK anti-filesharing plans are not out of synch with EU. The final text of Amendment 138 was known well before the June 16th publication date of the consultation, and that since it is such a political hot-potatoe, BIS should have proof-read the document and got it right. And it comments that Amendment 138 is a thorn in the UK government's side, because it would prevent them from requiring ISPs to cut off -filesharers or use ‘technical measures' to prevent them accessing file-sharing sites.
In other words, Amendment 138 will indeed ‘constrain policy options' as the UK's representative on COREPER, Andy Lebrecht, wrote in his briefing statement for the Minister , Lord Stephen Carter, presented in the House of Lords.
Digital Britain plans to put Ofcom in charge of the anti-filesharing measures, with a duty to restrict Internet users by ‘technical measures' such as protocol blocking, and website blocking. And the BIS peer-to-peer consultation suggests that ISPs set up joint call centres to handle complaints from users who have been cut off or throttled.
Ofcom will be given a target to reduce file-sharing by 70 per cent. But this is how the "70 % trigger" is to be calculated:
The Proportionate Notification Response trigger that we propose, should be focused on measuring the efficacy of the scheme involving a notification procedure, legal action and other measures as set out above in relation to achieving the 70% target for reduction in unlawful sharing. We therefore believe that the trigger should be calculated by (a) taking the number of unique individuals notified and (b) assessing what percentage of those notified have stopped unlawful file sharing, either voluntarily or due to
prosecution. If that percentage does not exceed or is not significantly close to
70% the mechanism will be triggered (As an illustration: if the baseline
unlawful peer to peer universe identified by Ofcom was 100, and notifications
were sent to 50% of that universe with prosecutions against serial repeat
offenders, the benchmark would be met if there was a 35% reduction in
unlawful file-sharing i.e. 70% of 50%).
If I understand it correctly, for every 100 people who fileshare, 50 get a warning email. If 35 stop filesharing, then Ofcom has achieved its target. If only 34 out of every 50 notfied then they will institute blocking. Serial repeat offenders within that group of 50 are prosecuted in the courts. But how do they identify what they call ‘the Ofcom universe'? Are they only going to notify half of the people they identify? Could it be another case the government's dodgy maths?
On the basis of these defects in the plan, the UK proposals for Ofcom would seem to go further away from the requirement of a judicial ruling - as per Amendment 138 - than even the French Hadopi, the public authority with a remit to implement France's proposed graduated response / 3-strikes law. But the French Conseil Constitutionel has been declared that the Hadopi, as it was originally proposed, would infringe fundamental rights to freedom of expression. On that basis, the Digital Britain proposals for Ofcom - which is neither a court, nor even a legally competent tribunal - would also infringe the right to freedom of expression, as well as the right to due process.
I have also spotted another error in the BIS peer-to-peer consultation document. It is not substantive, but significant when this is a policy document. BIS has the incorrect name for the French 3-strikes law. It calls it "La Loi HADOPI". In fact is is the Loi no. 2009-669 du 12 juin 2009 favorisant la diffusion et la protection de la création sur internet or Creation and Internet law for short.Finally, Linx - the London Internet Exchange - highlights that Digital Britain also includes government plans to take over Internet governance - at least the UK registrar, Nominet. Now contemplate that - the UK government will have the power to restrict access to websites, and the power to grant web domains. It will be able to play God over who can, and who cannot, own a website. That is getting very serious. Especially as we have a Ministry who apparently, cannot proofread.
BIS' text of Amendment 138 to the EU Telecoms Package
NB BIS until recently was BERR.
The text which BIS has inserted is highlighted in red.
3.20 On 6th May the European Parliament passed an amendment to the Telecoms
ge which said:
"Article 8f(b) applying the principle that no restriction may be imposed on the
fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened or for other legitimate reasons in which case the ruling may be subsequent".
At the time of writing it is not clear whether this amendment will stand, or whether it will be subject of a conciliation process. "
The BIS P2P consultation is open until 15th September so there is still time to get your views in!
Further commentary on the Digital Britain proposals:
The Pirate Party of Great Britain highlights that ISPs could be fined £50,000.
Angela Daly reminds us that Digital Britain's so-called " anti-piracy"plans are about industrial protectionism.
And of interest in respect of network filtering in the UK:
BT has been forced to bow to public pressure and drop its plans for advertising using deep packet inspection, known as Phorm . It's my understanding that some of the people behind Phorm could be the same ones advising Lord Stephen Carter, the minister responsible for Digital Britain.
The Conservative Party have proposed to reduce the size and remit of Ofcom in a 'bonfire of the quangos' if they are returned to power after the next election.
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) What are legitimate reasons for the UK to block the Net?, http://www.iptegrity.com 8 July 2009.