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In what looks to be an attempt to bury the bad news, Ofcom, the UK regulator has today released its draft 'Code' for the first part of the UK's 3-strikes/graduated response measures under the mis-named Digital Economy Act. Contrary to Ofcom's PR spin, the Code will hit small  ISPs in the medium-to-long term and will make it impossible to operate public wi-fi without censoring what users can access.

The Ofcom 3-strikes Code  precedes the 'technical measures'  to cut off or throttle Internet users,  which are intended under the Act to follow in 12 months.


 The  Ofcom Initial Obligations Code under the Digital Economy Act, vindicates  some of the predictions that have been floated in the past two-three weeks (see previous articles on It is a 3-strikes measure, where Internet users accused of copyright infringement by rights-holders will receive three warnings, with the threat that if they 'persist' they will be put on a blacklist and their name and contact details may be passed to the rights-holders for court action.

Whilst Ofcom is trying to soften the blow by saying that small ISPs will be excluded, this is  a distortion of the truth. 

The Code establishes that the 7 largest ISPs will be expected to comply with the Code at first, but that Ofcom will monitor file-sharing traffic and will require other ISPs to comply over time. The important clauses are 3.17 and

 3.18 - pasted below.

Thus, the exclusion of small ISPs is only at the beginning, and if users migrate ISPs to escape the warning notices, then small ISPs will be forced to co-operate with Ofcom's 3-strikes Code too. This will hit the ISP industry hard, with customer migration imposing an unnecessary  and additional cost on top of the cost of administrating the 3-strikes measures themselves. The threat of a financial penalty will be too high a burden for  small ISPs to carry.

The Initial Obligations Code makes explicit some new aspects too. For example, the blacklist of users who have received warnings. Rights-holders are expected to pass the details of infringing IP addresses to the ISPs within 10 days of the alleged infringing act - this looks to me like it is intended to get around the data retention rules.

The blacklists are dubbed 'Copyright Infringement Lists'  and Ofcom plans that they should include all users who have received three warnings (called Copyright Infringement Reports) within a 12-month period.

 Users and operators of public wi-fi will be told that they have an obligation to control their Internet access -  a  new legal concept imported from France. This will make it impossible to operate a public wi-fi system without spying on the users, or restricting their access to the Internet in a totally unacceptable way. 

The Ofcom Code sets up an "appeals procedure" which will put the UK in breach of EU law, if and when the so-called "technical measures" are introduced. 

Ofcom has released the Code on the Friday before a public holiday and on the same day as the new Prime Minister, David Cameron, is making a speech about reviving the economy and encouraging entreprenurship. All professional PR people know that if you want to hide something, announce it late in the day when the media have plenty of other news to write about. For a regulator of an important industry, this is a deplorable practice.  



3.17 We propose Ofcom should regularly review the qualification criteria, taking into account the number of subscribers and the volume of potential CIRs made by Copyright Owners in relation to ISPs not covered by the Code. Ofcom will be able to gather the necessary information to determine this as part of its reporting function. Therefore, the assessment should not give rise to an undue additional burden for us, Copyright Owners or ISPs.

3.18 As appropriate, we will alter the qualification criteria in the Code, so as to require the participation in the Code of any ISP where the scale of infringement is sufficient to objectively and proportionately justify its inclusion in the Code. In making such an assessment we would review evidence of alleged infringement across those ISPs outside the scope of the Code and consider both the costs and feasibility of requiring those ISPs to comply with the obligations. Our approach will in practice be guided by evidence gathered once the Code has been implemented. We would anticipate at this stage that any amendment to the qualification criteria would be made sufficiently in advance of any notification period to ensure that Copyright Owners are aware of those ISPs to whom they may submit estimates of CIRs for the purposes of the Code. 


Read the Ofcom Initial Obligations Code  - for copyright enforcement measures  - 3-strikes/graduated response - under the Digital Economy Act:   Online Infringement of Copyright and the Digital Economy Act 2010 Draft Initial Obligations Code


Post-script: someone at Ofcom must have a dark  sense of humour or a total disdain for British citizens,  because the pdf title is "condoc". Are they conning us? 

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 (2010) UK 3-strikes Code  released by Ofcom: ISPs will be hit hard 28 May 2010  







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