The Closing of the Net  "original and valuable"  Times Higher Education

Proposals to permit the UK Secretary of State, Peter Mandelson, to approve automated sanctions for file-sharers are now officially on the table.  UK government gives in to Hollywood and music industry pressure to use  deep packet inspection against Internet users.


A document quietly released today confirms my previous  report on that plans are afoot for the UK Secretary of State to be given the power to mandate "technical measures" against file-sharers. The document says that

the original proposals for Ofcom to introduce automated sanctions (following due process and a market assessment) would take ‘an unacceptable amount of time' in view of ‘the need for urgent action'.


The document is an amendment to the P2P  Consultation run by the Department for Business, Innovation and Skills (BIS).  This new  document builds on the proposal in its June consultation document  that Ofcom, the regulator, would be given the power to determine, using due process, whether and when ‘technical measures' should be introduced.  Instead of the due process formula ( which was actually flawed and probably unworkable) it is now proposed  that the Secretary of State should be allowed to direct the introduction of ‘technical measures'.


The document is clear that it will be his judgement based on his assessment of the information put before him:

"The key will be to base decisions on robust and transparent evidence of the general direction and pace of change. In reaching his decision, the Secretary of State will have to carefully weigh the evidence available to him and make any order on the basis of defendable information based largely but not exclusively on the reports from Ofcom. But even so, the Secretary of State can do this much quicker than the process which the regulator would have to go through if acting alone. "


Thus, the Minister,  Lord  Mandelson,  will have the power to dictate to the Telecoms Regulator when and how to introduce measures to support the copyright industries. Those measures are specified in the June Consultation document as "traffic management or filtering".

It was already in the UK Digital Britain proposals that the government is proposing ‘technical measures' against file-sharers. (See for example, point 4.6 on p25 of the rights-agency proposal ). In the Rights Agency proposal, they are specified as  throttling and protocol blocking:  "restricting access to specific traffic protocols;  suspending access to the internet"

  What is equally concerning is that BIS swallows unquestioningly the industry line that all file-sharing is unlawful and that ‘technical measures' are the solution.  The Department openly admits in the document that these latest proposals are the result of ‘stakeholder pressure': some stakeholders have argued strongly that none of those technical measures is powerful enough to have a significant deterrent effect on infringing behaviour.'

The move follows a meeting between Lord Mandelson and the  Hollywood media mogul David Geffen earlier this month. Geffen is head of Steven Spielberg's Dreamworks Studio, which has just raised $825 million in investment funding - indicating that someone thinks it still has a good business proposition and begs the question why it needs UK government protectionist measures.


The proposals also reflect an earlier proposal from the BPI (British Recorded Music Industry)  which drafted an amendment to the Copyright, Designs and Patents Act that ISPs should be made liable for copyright infringement and obligated to introduce measures against infringers.


The ISPs are to be asked to pay half the costs - quite how this will work when they have to invest in new equipment and resources - is unclear.


‘Technical measures' are about using automated network technology to block websites and user connections. One of the methods is known as deep packet inspection, where the ISP would open up every data packet and look inside, and would take decisions on whether or not to permit the user to continue communicating, based on the content. This is legally interception and is not legal under UK or EU law.



Deep packet inspection was the basis for BT's proposed Phorm system, which has been dropped after campaigning pressure.


'Technical measures' will contravene Amendment 138 of the EU Telecoms Package. If you are not familiar with the EU Telecoms Package, please see my extensive coverage elsewhere  on


Read the Amendment to the UK government's P2P Consultation 


This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. 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)Mandelson to sit in judgement on file-sharers , 25 August  2009.  







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