Legal uncertainty for citizens and ISPs can be expected from the Ofcom's Code to implement the Digital Economy Act, which will bring in 3-strikes (now confirmed as 3) measures to the UK.
The Ofcom Consultation on the Initial Obligations Code, which implements the Digital Economy Act, ended yesterday. According to sources in consumer groups, citizens organisations and ISPs, the code fails to support either users or ISPs, even under the weak provisions which are in the Act. In many instances, the UK regulator is accused of putting users and businesses in a legally uncertain position.
The Ofcom Initial Obligations Code, as it is called, is criticised because it:
In particular, it clarifies the position on the ‘3-strikes'. Where the previous government, and Ofcom, have tried to deny that this is about ‘three' strikes measures, we can see clearly in the Initial Obligations Code that Ofcom proposes to put users in line for sanctions after their ISP has sent them 3 notifications.
On the matter of wifi, Ofcom has been accused of ducking the issue. In the Initial Obligations Code, Ofcom plays around with legal definitions, and suggest that some private wifi systems could be redefined as ISPs. However, what it does not address is the additional obligations that this might impose on those wifi operators, such as retention of users communications data.
Nor does the Code address how it will differentiate between a wifi operator which will qualify as an ISP, and one which must remain defined as a ‘user'. Those which remain ‘users' will be liable under the 3-strikes rules.
The so-called appeals process is ill-defined and skewed towards the rights-holders. The nature of the body which will hear the appeals is not addressed, and this is a very serious omission. The ability of users to issue a robust, workable and credible defence against rights-holder allegations is also not addressed.
What Ofcom has done, however, is thought about the costs of appeals, and limited the ability of users to obtain reimbursement of legal costs in the event that they win an appeal against a rights-holder. Critics say that this goes beyond the requirements of the DE Act, to the disadvantage of users.
This appeals body will ultimately have the power to punish citizens and businesses and to deprive them of fundamental rights under the law. The Code arguably demonstrates a failure by Ofcom in its duty to protect the interests of citizens, and in particular compliance with the requirements under EU law is questionable.
The policy question - in light of calls to repeal the Digital Economy Act - is whether the telecoms regulator is the appropriate institution to do this at all?
*Additional comment on the Digital Economy Act and Ofcom's Initial Obligations Code is available here from Consumer Focus via the Open Rights Group
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) DE Act: users and ISPs hit by Ofcom Code http://www.iptegrity.com 31 July 2010