A small UK ISP thinks that 3-strikes is an ‘industry standard' approach. Since when? Given that the French Constitutional Court has declared it to be a breach of fundamental rights for private companies to cut people off the Internet, we seem to be getting a raw deal here in the UK.
The UK Internet Service Provider Karoo is under the mistaken impression that 3-strikes is an ‘industry standard' approach. It has recently been revealed that this small ISP serving the city of Hull has been terminating the Internet access of its customers on the orders of the copyright industries.
In the first reports, Karoo was taking this action without warning customers first. Following the bad publicity, it has changed its policy to sending warnings, followed by suspension. A statement on its website now says that this is ‘more in line with the industry standard approach'.
This statement gives cause for concern. 3-strikes is NOT an industry standard. Nor is it the law in the UK. Under current UKcopyright law rights-holders may apply for an injunction to get the names of people they believe to have infringed, in order to take them to court. (CDPA, Article 97A ). That is where UK copyright law stands.
The French government's 3-strikes proposals in their first draft, proposed a system of two warnings followed by service termination for alleged copyright infringers. The French 3-strikes proposals were declared to be in breach of the fundamental rights to freedom of expression which are essential in a democratic society. President Sarkozy has had to review and re-write the proposals.
Industry standards are usually agreed in formal standards bodies, and have to be such that they can be implemented in all countries. Measures such as 3-strikes are a new approach to copyright enforcement and IF they were to be put in place, they need to be implemented by law. The process of legislation enables the measures to be publicly scrutinised and debated and this is the right and proper process in a democratic country.
For a small telecoms company to take action like this on its own, is more akin to cowboy practice than legal practice.
Karoo's action to terminate users is a form of private justice, and arguably breaches the Human Rights Act , which implements EU law on fundmental rights. Specifically it enshrines in UK law the principles expressed in the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 10 on freedom of expression says that we have a right to communicate without interference from a public body.
It would appear that Karoo is disconnecting users on the basis of ‘evidence' supplied by rights-holders and therefore acting as a conduit for private disputes. Under the Human Rights Act, users have a right to due process, and a right to be presumed innocent until proven guilty - both rights are breached by this type of action.
There are further questions as to the level of surveillance being put in place by Karoo. They say the service will be ‘temporarily ‘ disconnected - how long is ‘temporarily' and what is the means by which they do this? If they are using deep packet inspection and traffic management techniques - which comprise the ‘technical measures' being considered by the UK government and demanded by the rights holders - what are the implications for the user's privacy?
Karoo's ‘illegal abuse policy' statement also raises a number of other causes for concern as to the company's understanding of the law.
The statement confuses ‘safety and security' with ‘copyright infringement' - a false comparison. ‘Safety and security' refers to viruses and other problems on the network which could cause actual harm to the equipment. It does not apply to copyright infringement, which is a commercial matter.
Linking copyright infringement to ‘inappropriate material' is even more concerning. What is ‘inappropriate material'? On what criteria is Karoo taking that decision? To the best of my knowledge, there is no legal definition of ‘inappropriate material' and any attempt by Karoo to define it and to take action to block content or punish users, would be considered censorship. Such action would be in clear breach of the fundamental right to freedom of expression.
Moreover, what then is the position of Karoo in terms of it's legal status of ‘mere conduit' which means that it has no responsibility for the content on the network, and is not supposed to be monitoring what users are doing.
The case of Godfrey v Demon Internet has created a duty to operate a ‘notice and takedown' procedure for operators of bulletin boards and websites. To my knowledge, it does not create an obligation to check up on the allocation of IP addresses following an allegation regarding something being downloaded via the network, and then suspend or terminate that user's access.
I note the final sentence refers to securing your connection. There is no such obligation under UK law. Under the French government's law there was an ‘obligation to control'. This measure has also been declared to be in breach of fundamental rights, because of the surveillance implications.
Karoo's actions do however, brings the EU Telecoms Package ‘limitations' to life and give the lie to the claims by certain MEPs that there are no plans to restrict the Internet.
The case of Karoo raises far-reaching issues about copyright enforcement and whether ISPs should be permitted to block web content without regulatory oversight.
Please see my extensive coverage of the EU Telecoms Package if you are not familiar with it and the issues it raises.
Here is Karoo's statement on its website:
"Our customers' safety and security is paramount. We have always taken a firm line on the alleged abuse of our internet connections and if we are made aware by copyright owners or the Police that customers are accessing inappropriate material, performing illegal acts or infringing copyright, we have a duty to act.
"However, we continually review our policies and procedures to reflect own customers' changing needs and evolving use of the internet. It is evident that we have been exceeding the expectations of copyright owners, the media and internet users. So, we have changed our policy to move in more line with the industry standard approach, whilst still taking the issues of copyright infringement and illegal internet activity seriously. Going forward, we will provide customers with three written notifications before their service is temporarily suspended.
"We encourage our customers to legally access copyrighted material through sites such as Spotify, Play.com and Amazon.co.uk via karoo.co.uk. Our Technical Support team is also available to provide advice to customers on how to ensure their broadband connection is secure and not open to abuse by others."
(Note: the grammatical error above is reproduced exactly from Karoo's website).
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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) Karoo - since when is 3-strikes an ‘industry standard’ ? http://www.iptegrity.com 28 July 2009.