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Britain could get a "quasi-judicial" system of automated justice under new proposals being rushed into place by the telecommunications regulator, Ofcom. The implementation of the Digital Economy Act is happening in meetings taking place behind closed doors with no transparency.

The aim is to get the first stage of a draconian copyright regime in place by the end of the summer. The proposals which have filtered out of the meetings appear to be non-compliant with the EU Telecoms Package final agreement.

After the Digital Economy Act was rammed through the Parliament under a guillotine which surely must make its legitimacy questionable, Ofcom is doing a cloak-and-dagger exercise to make the Act a reality before the public can realise what it has done.

From what can be ascertained, Ofcom intends to get a system in place for the warnings-element of a 3-strikes system in place by August. This is two-three months shorter than even the time-frame in the Act. In order to achieve this timeframe, Ofcom is calling meetings with the two industries concerned - entertainment /music; and Internet/telecoms; - in spite of the election and the political uncertainty in the UK at the moment.

The first meeting was on 28 April - not even a month after the Act achieved Royal Assent and officially became law - and the second meeting was on 6 May - the same day as the UK election.

The meeting agendas are to discuss

the so-called 'Initial Obligations Code'. This is the document which will spell out for the first time exactly the 3-strikes process - a system of warnings followed by a sanction against Internet users for alleged copyright infringement - will work. It will be followed by another 'Technical Obligations Code' which will outline how users will be punished for infringements.

It is unclear why Ofcom feels such a need to rush. In the current situation where we could have a coalition between the Liberal Democrats - who oppose the Act - and the Conservatives - who want to work with the LibDems on civil lilberties issues. The public is concentrating on who will form the government.

It would seem an indecent haste, if not irresponsible and reprehensible for Ofcom to bully through the proposals which have implications reaching much further than the remit of a telecommunications regulator, under the cover the post-election tension.

The Digital Economy Act contains provisions for a 3-strikes system of copyright enforcement, comprising warnings to Internet users accused of copyright infringement, followed by a sanction which includes suspension of their Internet access. But the law as passed by Parliament only contained a loose proposition and no detail - that is left for Ofcom to do.

The civil liberties aspects of the Act, in my opinion, need to be addressed in much more detail, and in the public domain, before any agreement can be made in Ofcom's offices. When one looks at the information emerging from the Ofcom discussions, there are several very serious civil liberties issues that should be raised.

Of particular concern is that Ofcom appears to regard this as a commercial disputes process - citing such commercial jargon as "KPIs" - key performance indicators - at the same time as admitting that the process is "quasi-judicial".

Ofcom seems to take the view that an appeals process managed by an industry-funded body is capable of handling the process, including legal judgements on the basis of copyright law. Ofcom documentation says the appeals body must be independent "for practical purposes" only.

Mocking lanuage such as "frivolous appeals" is used , without definition but with the implication that Internet users will want to waste administrative time by lodging appeals without basis. The use of such language so early in the process indicates that the process is anything but independent.

Internet users who receive more than one warning notice are to be put on a blacklist called a 'repeat offenders list' . There is no detail given as to how the list will operate, or the full criteria for appearing on it. It is also suggested that punishments can be handed down based on retrospective warnings.

Especially concerning is Ofcom's suggestion that the appeals process can be automated. Ofcom further seems to take the view that consumers should be given an outside time limit on making appeals of 4 weeks.

The question of a 'judicial process' for copyright enforcement on the Internet, was of course the main issue in the EU Telecoms Package.

All of the above would seem to me to be non-compliant with the EU Telecoms Package, which demands that a "prior, fair and impartial hearing"...and "presumption of innocence" " shall be guaranteed" by the British government.

The word 'prior' is especially important, because it states clearly that the hearing must happen before the sanction is handed down. The right to fair trial has existed in England since the Magna Carta .*

Presumption of innocence is a fundamental principle of British law which should be upheld. Under the Ofcom proposals it will be reversed.

The Telecoms Package also calls for "effective judicial protection and due process" and my interpretation of its intention would be that an industry-funded body would not comply. Especially as Ofcom is consulting on the type of expertise needed by the members of this body, therefore it is unclear that they would even be people trained in the law and in handing down judgements.

The proposal of automation is an abherration justice which should not be tolerated in a civilised society. It is, as the European Data Protection Supervisor suggested in the Telecoms Package debate, the beginning of a slippery slope towards surveillance of Internet users.

Given that Ofcom admits it is implementing a "quasi-judicial" process, then this is an admission that what it is doing is much more than just industry regulation. It is arguably outside the remit of the telecommunications regulator.

It's also interesting to ask what, under Ofcom's scenario, would be the "key performance indicators" ? How many appeals were quashed within the 4-week target timeframe? Is such a set of indicators appropriate in a process which is about sanctioning - punishing - Internet users.

Notes of what was discussed at the meetings on 28 April and 6 May have been put online by the Open Rights Group (28 April and 6 May ) and by Trefor Davies , chief technology officer of a small ISP called Timico. He attended because he felt that small ISPs would otherwise not be heard. Judging by the content, it looks to me as though few voices outside the rights-holder camp are being listened to.

The fact that Ofcom is ready so quickly with its proposals does suggest the likelihood of previous discussions between Ofcom and the rights-holder industries.

Ofcom's short-notice scheduling of meetings is making it difficult for citizens and smaller industry stakeholders groups to participate, which is very concerning given the serious implications for British justice which are entailed in the proposals under discussion.

See Magna Carta, Clauses 38 and 39.

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 (2010) "Quasi-judicial" 3-strikes could sneak in under cover of elections http://www.iptegrity.com 10 May 2010

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About Iptegrity

Iptegrity.com is the website of Dr Monica Horten. I am an  independent policy advisor, with expertise in online safety, technology and human rights. I am a published author, and post-doctoral scholar. I hold a PhD from the University of Westminster, and a DipM from the Chartered Institute of Marketing. I cover the UK and EU. I'm a former tech journalist, and an experienced panelist and Chair. My media credits include the BBC, iNews, Times, Guardian and Politico.

Iptegrity.com is made available free of charge for non-commercial use. Please link back and attribute Dr Monica Horten.  Contact me to use any of my content for commercial purposes.  

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